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HomeMy WebLinkAboutStudy Session Agenda Packet 05-05-14STUDY SESSION AGENDA CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO 7500 W. 29th Ave. Wheat Ridge CO May 5. 2014 6:30p.m. Individuals with disabilities are encouraged to participate in all public meetings sponsored by the City of Wheat Ridge. Call Heather Geyer, Administrative Services Director at 303-235-2826 at least one week in advance of a meeting if you are interested in participating and need inclusion assistance. PUBLIC COMMENT ON AGENDA ITEMS APPROVAL OF AGENDA .L Dwarf Goats Zoning Amendment 2. Business Development Zone -De Mott ~ Xcel Banner Pole Agreement 4 . Height and Density Charter Restrictions 5. Staff Report(s) 6 . Elected Officials' Report(s) ADJOURNMENT ~~A~ ... ., City of ... ~Wheat&__dge ~OMMUNITY DEVELOPMENT :c;+cnt J Memorandum TO: Mayor and City Council Patrick Goff, City Manager ~ THROUGH: FROM: Kenneth Johnstone, Community Development Director DATE: April25 , 2014 (for May 5, 2014 City Council Study Session) SUBJECT: Zoning Regulations pertaining to Dwarf Goats ISSUE: Some homeowners in the City have recently raised questions about the permissibility of dwarf goats on residential properties in the City . The City's large animal regulations currently regulate full size goats ; but no distinction is made for dwarf goats , which are considerably smaller. A property owner located at 3495 Ames Street in eastern Wheat Ridge has expressed an interest in keeping dwarf goats on her property. Dwarf goats are not specifically referenced in any section of the Municipal Code. Based on limited research (refer to attached handout), it appears dwarf goats are generally between 40 and 60 pounds , so substantially smaller than a regular goat which average approximately 150 pounds. They have become increasing popular to have at one 's home, both as pets and as sources of dairy and dairy related products. The City's zoning administrator has determined , based on the above described code sections that dwarf goats are most similar to goats and therefore subject to the City's large animal regulations . The property in question is not of sufficient size to meet the threshold of 9 ,000 square foot of open lot area . This determination has caused the property owner to request the City to consider code amendments to allow the keeping of dwarf goats in more circumstances than currently allowed under our large animal regulations. At the recommendation of the City's Animal Welfare and Control Commission (AWCC) at their March 18 , 2014 meeting, staff has prepared this memo and analysis for consideration. The intent of any code amendment would be to allow more opportunities to keep dwarf goats on residential properties through more permissive zoning regulations. Amendments to Chapter 26 (Zoning and Development) require review and approval by the Planning Commission and City Council as ordinances and are subject to public hearings. BACKGROUND: The City's zoning code (Chapter 26 of the Municipal Code) regulates the keeping of animals in re sidential areas in three principle code sections: 1) 26-204, Household Pets ; 2) 26-605 , Large Animals ; and 3) 26-606 , Small Animals and Poultry. Zoning Regulations RE: Dwarf Goats May 5, 2015 Page2 26-204. Permitted and accessory uses. Household pets are permitted and limited to no more than 3 dogs and 4 cats. No other detailed regulations. 26-605. Large animals. Large animals are described as horses , cows, llamas, sheep , goats and similar animals. They are allowed on residentially zoned lots , with certain minimum lot open area requirements, fencing standards, waste control measures and building setbacks . The keeping oflarge animals is generally not allowed in the front yard of a residential property. Large animals are regulated based on size, such that one horse is the control measure, refeiTed to as a "horse equivalent unit." Smaller large animals are defined based on how many horse equivalent units (HEU) they equate to: 2 llamas equals I HEU, 4 alpacas equals l HEU, 4 sheep equals 1 HEU and 4 goats equals 1 HEU. A property must have a minimum "open Jot area" of9,000 square feet for the first HEU and 6 ,000 square feet for each additional HEU. "Open lot area" excludes portions of a lot covered by structures , carports and patios. Under these regulations , in order to keep goats , a property would need to have a minimum of9,000 square feet of open lot area , which would allow for 4 goats . The 9 ,000 square foot standard is a minimum threshold and is not divisible for a scenario where one were to proposed something less than a full HEU . Stated another way a property would not be allowed to have two goats with only 4 ,500 square feet of minimum open lot area . 26-606. Small animals and poultry. The private keeping of small animals , such as rabbits and chinchillas, or poultry, such as chickens , ducks, geese, pheasants or pigeons is allowed , with no specific restriction on the number of animals , subject to various perfonnance requirements. There is no minimum lot size standard or threshold. Poultry houses and pigeon coups shall not exceed 400 square feet of floor area nor 12 feet in height. Hutches shall not exceed 1 00 square feet and a maximum of two floors. All structures housing animals shall be located outside of the front yard , set back 15 feet from side and rear property lines and not closer than 30 feet from a primary structure on an adjacent property. Animal waste must be controlled so as not to become a nuisance. OPTIONS: Option 1. Create a new code section that pertains specifically to these "medium sized " animals Option 2. Amend the large animal section of the code to develop a new HEU for dwarf goats and amend the minimum 9 ,000 square foot threshold for open lot area Option 3. Amend the small animals and poultry code section to include dwarf goats Within each general option, there would be various substantive matters that could be addressed specific to dwarf goats and possibly other classes of similar animals , to the extent those exist. RECOMMENDATIONS: In 2011 , at the direction of City Council , the City reviewed and updated its regulations as they pertain to various types of urban agriculture types of activities. The general intent of the code 2 Zoning Regulations RE: Dwarf Goats May 5, 2015 Page 3 amendments that were approved by City Council was to be fairly permissive in regards to allowing and perhaps even encouraging urban farming types of activities. In keeping with that policy direction, it seems appropriate that we consider these changes to make more accommodations for the keeping of dwarf goats in residential areas of the City. Based on our review of the three options , staffbelieves Option 3, amending the small animal regulations , makes the most sense. Creating a new section of code (Option 1) seems to be cumbersome and excessive. We believe the large animal section of the code is generally working well , so amending that section does not seem appropriate. The existing small animals and poultry regulations seem to be best aligned with the types of regulations and restrictions that would apply to the keeping of dwarf goats. The issue was presented to the A WCC at their April 15 meeting. Staff recommended to the A WCC the possibility of implementing Option 3, with the following additional recommendations. • For smaller lots (those having less than 9,000 square feet of open lot area), limit the maximum number of dwarf goats to not more than three , plus their un-weaned offspring. This is in line with the limitation on maximum number of dogs already in place and given their similarity in si ze that number seems logical to staff. • Based on both odor and the size of the animal , not allow un-neutered male goats (wethers). • Restrict the location of any structures providing shelter or sleeping quarters to the same 15 /30-foot restrictions that apply to other small animal and poultry structures. • For larger lots that can meet the 9 ,000 square-foot threshold allowing for large animals , create a HEU for dwarf goats. We are suggesting six to eight dwarf goats equate to one HEU. The A WCC generally agreed with these recommendations and provided the following recommendation for City Council's consideration: • No minimum acreage be required (such as the 9,000 square feet of open space for larger animals) • Each goat must have 130 square feet of permeable area on the property • Nor more than three dwarf goats on a single property • No unneutered males allowed • Adequate fencing and shelter must be provided • No setbacks would be required for the corral area • Shelters must meet the setbacks for the underlying zone district • A definition for "dwarf goat" be included Staff looks forward to additional discussion and input at the May 5 Study Session and requests direction on whether to proceed with a zoning code amendment, and if so , under what general terms. The zoning code amendment would also require consideration by the Planning Commission. 3 Zoning Regulations RE : Dwarf Goats May 5, 2015 Page 4 ATTACHMENTS: 1 . Dwarf Goat Tutorial 2. Applicable section of Chapter 26 of the Code 4 Dwarf Dairy Goats in Wheat Ridge Prepared by Sundari Kraft Author, "The Complete Idiot's Guide to Urban Homesteading" Founrung Co-Chair, Denver Sustainable Food Policy Council Founder and Owner, Heirloom Garoens LLC Founder and Organizer, Sustainable Food Denver Backyard Goat Keeping Instructor, Denver Botanic Gardens www.eatwhereUlive.com info@ea.twhereUiive.com This is a draft proposal Qttestions and "')Nests for mlditional ifljof111alion a~ ».~tlt:ome. info@eatmhmUiive.rom Summary of the Proposal Urban homesteaders across the country a ,re raising b ackyard dwarf dairy goats in growing numbers. Small in size (milking does weigh 50-60 pounds) and easy to mru1age, d warf goats can be a source of healthy and affordable milk for families . Wheat Ridge should add dwarf goats to the list of "Small Animals and PouJtry" that al'e currendy allowed i.n the city, with reasonable guidelines regarding the size and placement of the animals' structure. Current Laws Wheat Ridge currendy requires 9,000sf o f open s p aoe in order to have a horse, and 4 full -size goats are the equivalent of a horse. The rules do not make any distinction between a d warf goat (50-60 pounds) and a full -size goat (t 50 pounds). lo addition, a resident who only wants to keep 2 goats is not aUowed to "split the horse" (so to speak) and llave 2 goats with only 4,500sf of open space. 9,000sf of open space is not a reasonab'le requ.U.<ement for an urban homesteader, nor is it a necessary amount of space in order to safe:ly raise dwarf goats. The category of "Small Animals and Poultry" currendy indudes things like farm birds (duck, goose, swan, and poultry) and domestic ra bbits. P mrl ,b:y h ouses or chicken coops must be smaller than 400sf and shorter than 12 {eet tall. The structu11e cannot be kept in dte front yard, and must be at least 15 feet away from the p roperty lines and more than 30 feet from a residence or main structure on an adjacent property. About Dwarf Goats The term "dwarf goats" can be applied to two d i stinoti ve breeds of goats: Nigerian Dwarf and African Pygmy. Nigerian Dwarf goats are most 'commonly caised as dairy goats. They are 17-19 inches tall (m easured at the shoulder). Adult females weigh around 50 -'60 pounds, and adult males weigh around 75 pounds. These goats are approximately as b ig as a mediwn-size dog. A Nigerian Dwarf d oe can produce about a quart of milk per day. Ma:les that ace castrated (called "wethers'') are often kept as pet s. Tit ese goats eat primarily hay, although they a liso ,enjoy vegetarian food scraps, weeds, and most garden waste. Goat droppings can be safely added (IO gardens or compost piles. Nigerian Dwarf goats can be easily transport:ed in the back of a car, and they enjoy hiking in the m ountains on a leash. African Pygmy goats are similar 'to Nigerian Dw~rfgoats in many ways, although they are typically not milked and kept onl y as pets. They are smaUer in size --just 15-17 inches high at the shouJd er and weighing 40-50 pounds. Both Nigerian Dwarf and African Pygmy goats ace d i stinctly different in size rompa.red to ful l -size goats, wruch generally weigh around 150 poun ds . Benefi,ts of Dwarf Dairy Goats • Economic: Dwarf goats can provide affordable, healthy milk for families . Goat milk can be used to make cheeses (bod1 soft and bard), yogurt, and ice cream. Although raising goats ,requires a smaH initial investment, ovec the long teem goats can save a family money on dairy products (especially when comparing "apples to apples" in terms of organic, grass-fed milk, cheese, yogurt, and ice cream). • Healili: Dairy produced by animals raised on grass (hay) is higher in conjugated linoleic acid, b eta -cacotene, and vitamins A and E when compared to dairy produced by animals on a more common grain diet. In addition, goat milk is naturally homogenized and has smaller fat molecules ~than cow milk. Many people who are 'lactose-intolerant can comfortably consume goat milk, and it is better tolerated by people with asthma and allergies. • E n vironmental: There are man)' reasons to support the keeping of backyard Food- Pcoducing Animals. Each item of food an American consumes travels an average of 1300 maes to ~reach the plate. In the case of dairy, the energy use of transport is increased because 'the food must be refrigerated. Concentrated Animal Feed Operations (CAPOs), where much of this country's dairy is produced, pollute surface and ground water. CAPOs contribute significantly to greenhouse gases through methane emissions, and release other hazardous gasses into the air. ,. f ood Safety & Security: Dairy produced in CAPOs is extremely vulnerable to food-home bacteria. Backyard Food-Producing Animals can provide a relatively secure source of protein for families . An overwhelming peccentage of the food Coloradans consume is produced o utside of GoJocado . Food-Producing Animals can help to reduce our dependence on o utside food sources. Keeping Backyard Dwarf Dairy Goats • Shelter: Dwarf goats need to have access to a shelter. Best practice would be a shelter that p rovides at least t Ssf of space pee goat. • Open s"ace: Dwarf goats can live comfortably in many b ack yard spaces . Best practice is at least 130sfofopen space pee goat. • fencing: A 4-foot fence is generally adequate to keep a dwarf goat secure. • ~ Dwarf goats should eat primarily bay, which i s available at sevecallocaJ feed stores. Gcain can be given in small amounts as a supplement In addition, dwarf goats can eat most vegetarian food scraps and most garden waste, although care should be taken to avoid a few harmful foods. Dwarf goats should be given consistent access to water. • Milkio&: Lactating does can be milked once or twice a day. It is not necessary to milk at the exact same time every day, but relative consistency is helpful both for the comfort of the goat and for stability of milk production. • Milk Prodyction: Nigerian Dwarf goats can produce around l quart of milk pee day. • Yeterinuy Care: There are veterinarians in Highlands (Denver), Golden, and Genessee who see goats. Goats in CoJocado should receive a CD-T vaccination once pee year. 1b.is vaccine is to pt'o tect goats from enterotoxemia and tetanus, neither of which can be transmitted to h umans. • Socialization: Goats are social creatures and can become extremely stressed if they are alone. I t is not advisable to keep onJy one goat; goat owners should always have two (or more). Dwarf Goats in Other Cities Please see the attached chart (#I). Denver passed a new Food-Producing Animals ordinance in 2011, and tl1e chart reflects the rules of that ordinance. The information on other cities was gathered by the team in Denver tasked witll doing research in the process of developing tlle ordinance, and reflects the other cities' ordinances as of early 2011. A Wheat Ridge Solution The attached chart (#2) details the differences between the chicken. rules in Denver and Wheat Ridge . Altllough Denver is ow neighbor, their smaiUer llot sizes and concentrated population ;lends itself to more highly regulated a.nima.l ordinances. Wheat Ridge's more re'laxed chicken rules have given its residents tlle fle-xibility to raise chickens in whatever way best fits their situation, while setting structure guidelines to ensure that chicken coops do not interfere witll a neighbor's ability to enjoy their property. In addition, Wheat Ridge's laws regarding animal noise, odor, nuisance, and abuse help ensure that chickens are being cared for appropriately. In that spirit, it is logical to keep things simple and streamlined when allowing Wheat Ridge residents to legally raise backyard dwarf dairy goats. Including dwarf dairy goats in the list of ''Small AnUnaJ.s and Poultry" will set reasonabl.e rules ce,garding ,the size and placement of the goats' structuce, while maintaining consistency witll the cdative freedom allowed by Wheat Ridge's other animal po'licies. A 55 pound dwarf goat is closer in size to a chicken (6 pounds) than it is to a fuU -size goat (150 pounds), and also smaller in size than many dogs that Me currently kept in back yards . Number or Min. City Dwarr Square Feet GCMtts A lowed O pen S pace Seattle 3 None specified Portland 3 None specified Chicago Not None specified specified New York City Not None specified specified 2, plus any number of De.nver their 130sfper offspring up dwarf goat to6 months old Dwarf Goats in Other Cities Chart #l Fencing Min. Lot Sbelter Size Sbel ter Licensi ng Size Location None None None specified None specified No specified specified Animal None specified Must be 15ft None (must be in from neighbors ' No cannot roam specified good condition , at large etc) residences None None None specified None specified No specified specified Yard must be fenced to keep None None specified None specified No animals from specified roaming Must be 15ft Adequate to from neighbors' con tain the None At least 15 sf residences; Yes animals specified per dwarf goat must be in rear 50% of lot Use-By· Notes Rlg bt Yes 4 dwarf goats allowed on lols in excess of 20,000sf Yes Can get a permit for 4+ dwarf goats Yes Not expressly regulated if kept as pets I Yes One-time license of $25, no pre-inspection, license Yes does not need to be renewed unless resident moves ------------- A Wheat Ridge Solu tion Cbart#2 Allhough Denver is our neighbor, their smaBer lot izes and concenlllUed population lends itself to more highly regulated animal ordinance •. Wheat Ridge's more rdaxed chicken rules have g,iven its residents the flex i bility to nise chicliens i n W:hatevel' way best fits their situation, while sening structure guidelines to ensure 11hat chicken coops do ·001 interfere wilh a neighbor's ability to enjoy their propeny . Denver shows us that dwarf goats can be k~pt successfuUy i n me city. However, Wheat Ridge's solution may not 'lie in direclly duplicating !Denver's ·ordinance. but rather in inoorponting dwarf goats into Wheat !Ridge's .a:~Jleady ·successfuUy 'Food firoduc:ing Animals rules (i.e. "Small Animals and 1Poultry"). Comparis on of BaCkyard Chicken R ules W heat iRidge IOnver Number Allowed Not specified 8 Open Space Required Not s,pecified 16sf per chicten Nigblime$bella:: IMge enough for the c:bichusto .-ound eacb other; Struccure Size Not pecifiled Daytime ·sbdlcr.large enough for the dUdte to !pad their wings without lloudling Not in the front yard: t S rt ifirom Rear SO'I> or 111e tot; 1 s ft from Scructure Placement 'the side and rear (property ilines ; neigbboring resideooes 30ft from neighboring 1re .. idences Fencing Adequate :to contain 'the .animals Adrqu~~e tocoota.in tbe animals WNING AND DEVELOPMENT § 26 -204 Ac~sory Uses For Resiitential Distrt.Cts ..... Notes Bee keeping See § 26-603 and 607 Ancillary uses operating within a church's pri-e.g.: Day care centers, scout meetings mary structure Home occupations, including produce stands See § 26-613 and § 26-636 for produce stands Accessory buildings See § 26-123; 605 (excludes keeping of swine); 606. Accessory buildings shall not be located on a vacant lot devoid of any primary or main building, except for urban garden uses, which may or may not have a primary or main building Farmers' markets Not permitted as an accessory use on properties where the primary use is a single-or two-family home. See § 26-635 Household pets, limited to no m()re._ than 3 dog ~/ Plus their unweane<i offspring l arid 4 ca ~ P rivate swimming pools and tennis courts and See§ 26-603 other recreational facilities Public and private communications towers, televi-For satellite earth receiving stations, see § 26-616 sion or radio antennas and§ 26-617 Public utility lines and poles, irrigation channels, storm drainage and water supply facilities Rooming and/or boarding of not more than 2 per-On a contract basis for not less than 7 days sons Urban gardens See§ 26-637 Water towers or aboveground reservoirs Not in excess of 35 feet Table of Uses-Agricultural and Public Facilities Uses Notes A-1 A-2 I PF Bed-and-breakfast Subject to requirements s s ,I set forth in § 26-608 Cemeteries and creroato-Not including funeral s s ries homes Churches parish houses s s Day care home, large s s Day care center, large s s Day care center, small s s Dog kennels, catteries, Provided that outside s s veterinary hospitals runs which are adjacent to residentially zoned or used property are no closer than 25 feet to a ' side or rear lot line Electric transmission s s substations Farmers' markets Submittal to community p p p development department required . See § 26-635 Supp. No . 50 1729 ZONING AND DEVELOPMENT § 26-605 2. For all swimming pools, hot tubs, spas, and similar aquatic facilities (including in-and above-ground), required fences and barriers shall conform to the requirements of the International Residential or Building Code, as applicable. H. Maintenance. All fences shall be maintained in a structurally sound and safe condition, and shall not be allowed to deteriorate so as to become unsightly nuisances to neighboring property or to the general public. I. Height measurement. 1. Divisional fences, walls, hedges, and other divisional structures which are parallel or are adjacent to public streets shall be measured as provided by section 26-603B. (sight distance triangle requirements). 2. All other provisional fences, walls, hedges, and other divisional structures or obstructions shall be measured from finished grade, five (5) feet inside of the property to which it belongs. (Ord. No. 2001-1215, § 1, 2-26-01; Ord. No. 1248, § 1, 5-13-02; Ord. No. 1288, §§ 1, 2, 5-12-03; Ord. No. 1376, § 1, 10-23-06; Ord . No. 1515, § 9, 7-9-12; Ord. No. 1518, §§ 1, 2, 8-27-12) Sec. 26-604. Storage of flammable liquids or gases. No aboveground storage of flammable liquids or gases in excess of two thousand (2,000) gallons shall be permitted in any district other than the industrial-employment district unless approved as a special use and in conformance with the Uniform Fire Code and other applicable laws . (Ord. No. 2001-1215, § 1, 2-26-01; Ord. No. 1523, § 8, 10-8-12) Sec. 26-605. Large animals. Private stables for the keeping of large animals such as horses, cows, llamas, sheep, goats and similar animals shaH meet the following requirements. This section shall not apply to conforming lots in theA-1 or A-2 districts: A. Minimum open lot area shall be nine thousand (9,000) square feet for the first horse equivalent unit and an additional six thousand (6,000) square feet for each additional horse equivalent unit. For the purposes of this section, "open lot area" means a portion oflot excluding area covered by a main structure and attached carports or patios, and excluding detached garages. There shall be no more than four (4) horse equivalent units per acre except that offspring of animals on the property may be kept until weaned. One (1) horse equivalent equals one (1) horse, one (1) cow, two (2) llamas, two (2) burros , four (4) alpacas, four (4) sheep, four (4) goats, or two (2) ponies. B. Manure or liquid waste shall not be allowed to accumulate so as to cause a nuisance as regulated by Wheat Ridge Code of Laws, chapter 15. C . The pen, corral or fenced area allotted to the animals shall meet the following requirements: 1. The fence or other enclosure must be constructed and maintained in such a manner so as to adequately and humanely contain the animals. Owners of animals using fences belonging to adjacent properties to be used for the containment of animals must have permission of the owner of the fence in question in writing. 2. The pen, corral or fenced area for the regular keeping of such animals shall not be permitted within thirty (30) feet of the front lot line, except for lots over one (1) acre or, if under one (1) acre if the lot bas no main structure. 3. No part of an enclosure for the keeping of such animals shall be permitted within thirty (30) feet of a residence or other main structure on an adjacent parcel. Supp . No . 50 1822.1 ZONING AND DEVELOPMENT f 26-606 E. After a complaint is received concerning the keep~ of a larp animal on residential lots and substandard li.r.ed qricultural lots with corrals less than one thousand (1,000) square feet in size, the owner shall follow an approved manure management proeram as prescribed by the animal welfare control commission. F. Upon receipt of any complaint involving large animals as defined herein, standard nuisance abatement procedures will be followed. Additionally, code enforcement personnel will make the complaint known via the APEO superintendent to the membere of the animal welfare and control commission who shall be available in any advisory capacity at any time. The animal welfare and control com.mission will investigate all citizen complaints regarding large animals or their equivalents. The animal welfare and control commission will develop written procedures as to how citizen complaints will be investigated, monitored, and disposed of. G. Any keeping of animals made nonconforming by the passage of Ordinance No. 1165, Series of 1999, shall constitute a legal nonconformin&' keeping of animals. The legal, nonconforming keepi.o« of such animals may be continued so long as such keeping of animals remains otherwise lawful; except where such keeping of animals is discontinued for a period of sixty (60) consecutive days or more, then said keeping of animals must conform to the provisions hereof or must cease. Upon sale ofa property, the minimum requirements ofsection 26-606 shall be met or the keeping of animals must cease. For the purposes of this subsection G., periodic removal for the purposes of pasturing shall not constitute discontinuance of use. H. Nonconforming A-1 and A-2 properties (i.e., A-1 and A-2 lots less than one (1) acre in size) shall follow the provisions of subsections A through G., of this section. (Ord. No. 2001-1215 , § 1, 2-26-01) Sec. 28-608. Small animal• and poultry. The private keeping of small animals, such as rabbits and chinchillas, or poultry, such as chickens, ducks, geese, pheasants or pigeons, shall be subject to the following requirements. This section shall not apply to conforming lots in the A-1 or A-2 districts. A Poultry houses and pigeon coops, or the portions of structures used to house these animals, shall not exceed four hundred (400) square feet of ground floor area nor twelve (12) feet in height. B. Hutches for small animals shall not exceed one hundred (100) square feet of ground floor area with a maximum of two (2) floors or levels. C . Maximum ground floor areas for small animals or poultry set forth above may be increased by fifty (50) percent for each acre in addition to the minimum lot size for the zone district. D . All houses, coops, hutches or portions of structures housing animals shall be located other than in a front yard, shall be set back at least fifteen (15) feet from side and rear property lines, and shall be no cloaer than thirty (30) feet from a residence or other main structure on an adjacent property. E. The accumulation of animal waste to the extent that such becomes a nuisance to surrounding properties is prohibited, as regulated by chapter 15 of this Code of Laws. F. The legal, nonconforming keeping of such animals may be continued so long as such keeping of anim•ls remains otherwise lawful; except where such keeping of animals is discontinued for a period of sixty (60) consecutive days or more, then said keeping of animals must conform to the provisions hereof or must cease. (Ord. No. 2001-1215, § 1, 2-26-01) Supp. No. Sl 1823 § 26-605 WHEAT RIDGE CITY CODE 4. The fence or other enclosure must enclose a minimum of eight hundred (800) square feet for the first animal and an additional one hundred (100) square feet for each additional animal of any species. D. Structures such as barns or sheds or those portions of such structures where animals are housed shall be no closer than fifteen (15) feet to a side or rear lot line and shall be no closer than thirty (30) feet to a residence or other main structures on an adjacent parcel and shall not be located within the required front yard setback. Supp. No. 50 1822.2 ~ ... ., .. ~ ~ City of • ~WheatJ34_dge ~OFFICE OF THE 01Y MANAGER TO: THROUGH: FROM: DATE: Memorandum Mayor and City Council 1\.A Patrick Goff, City Manager kiJ' Steve Art, Economic Development Manager May 5, 2014 S+ervt2 SUBJECT: Request for inclusion into the Business Development Zone program for rebate of use tax ISSUE: Should the City of Wheat Ridge enter into a Business Development Zone (BDZ) Program Agreement with 38 Limited (38 Ltd.)? Staff is seeking guidance from Council on the following: 1. Authorization to proceed with drafting an agreement for City Council approval to enter into a BDZ Agreement with 38 Ltd.; and 2. Guidance on the percentage of incentive, total amount of incentive, and the time period during which the agreement would run. BACKGROUND: In late summer of2013 , 38 Ltd. purchased the building at 7200-7250 W. 38 111 Avenue between Upham and Teller Streets. This area of 38th Avenue is situated in the Main Street area of the Ridge at 38. 38 Ltd. intends to renovate the structure that will include a new restaurant at the western edge, residential units , and improved retail in the remaining first floor suites. The restaurant redevelopment plan includes an open patio on the second floor. The addition of the patio requires the demolition of the current second floor residential unit to accommodate the new patio area. Phase I of the redevelopment will include fa9ade improvements to the building and improvements to the building's internal infrastructure. Phase II of the project will consist of second floor residential units above the retail space to the east of the restaurant pad. The 38 Ltd. ownership group has met with the staff of economic development and the building division regarding the building plans and the desire for assistance through the BDZ program. 38 Ltd. has contracted with Dan O 'Brien, owner of ZO Architecture and its structural engineer to design the redevelopment project. The building, which encompasses one city block, has been occupied by various small businesses during the previous decades. During this period , the building has lacked any significant Request for BDZ Inclusion May 5, 2014 Page 2 maintenance and has fallen into disrepair. Since purchasing the building, 38 Ltd. has made improvements to the parking lot , the commercial structure behind the main building and repairs to the electrical systems. The owners have also relocated one tenant to make room for the restaurant development. The redevelopment project has an estimated valuation of $616 ,000 for the restaurant only. The fa<;:ade improvements are estimated at $65 ,000 . When complete, the project will increase the property and sales tax revenues to the City. The building use tax is estimated at $11 ,088 and fees are estimated at $7 ,178 for a total of $18 ,266. During the initial building improvement stage of the project's redevelopment, the site will generate new construction jobs and permanent employment once the new businesses are opened . A restaurant occupying a space of 3,500 to 5,000 sq. ft. may employ up to 30 people with a potential for sales tax generation of approximately $40 ,000 annually. Additional public improvements include: • Additional square footage with the rooftop patio and residential component • Fa<;:ade improvements that will beautify the Ridge at 38 • Foundation improvements for new development and reinforcement of existing space • Repair brick work throughout the project • New insulation for improved utility savings and noise attenuation • Provide ADA accessible improvements • Parking lot improvements to create an improved flow of traffic for the project • Improvements to the outdated sewage line • New water line to serve the needs of the restaurant and residential units • An upgrade of the outdated electrical system . The new service will upgrade capacity to 400 amps. • A potential to widen the sidewalks to allow more outdoor seating and visual impact to the Ridge at 38 which is consistent with the 38th A venue Corridor Plan • Increased market rate residential units in the main street portion of the Ridge at 38 that will generate increased property taxes 38 Ltd. is currently in negotiations with three parties that are interested in leasing the restaurant space . Depending on the user selected , the restaurant sizes range from 3,500 -5,000 sq. ft . Construction is anticipated to begin in late spring, 2014. The applicant has not submitted construction drawings to the City or has not scheduled a pre- application meeting with staff so the project value, taxes and fees are estimates based on what the applicant has provided to the City. Actual values will be determine when a building permit is issued for the project. Request for BDZ Inclusion May 5, 2014 Page 3 PRIOR ACTION: Chapter 22 ofthe Wheat Ridge Code of Laws established the BDZ Program. The primary purpose of the BDZ Program is to provide incentives for revitalization and new development to help overcome conditions ofunemployment, underemployment, net outmigration ofthe population , diminution of tax revenues , chronic economic distress and deterioration of business districts and public infrastructure. The BDZ provides incentives through the rebate of use tax on furniture and fixtures associated with the initial development or redevelopment project, use tax on building materials , building permit fees and zoning fees. In the past the Council has approved several BDZ agreements with existing Wheat Ridge businesses and non-profits as well as an existing business in a neighboring community looking for an incentive to relocate to Wheat Ridge. Every project was unique , but each was evaluated against a set of criteria outlined in the Code of Laws. The criteria for approval of a BDZ agreement are as follows: 1. The amount of enhanced sales tax (and use tax for a BDZ agreement) which can reasonably be anticipated to be derived by the City through the expanded or new tax generating business; 2. The public benefits which are provided by the applicant through public works , public improvements , additional employment for City residents ; 3. The amount of City expenditures which may be deferred by the City based upon public improvements to be completed by the applicant ; and 4. The confonnance of the applicant 's property or project with the comprehensive plan and zoning ordinances of the City. On May 14 , 2012 , City Council adopted Resolution 24-2012 which established the entire incorporated City of Wheat Ridge as a Business Development Zone. The resolution also stipulated that the BDZ Program would be used as an economic development incentive to target businesses that will enhance the City's sales and use tax base and create jobs to include, but not limited to , the following: a. Niche and Specialty retail -gardening, landscaping, and produce retailers; outdoor lifestyle and recreation retailers ; full service, sit-down restaurants ; furniture , hardware and clothing stores b. Primary employers -medical-related facilities and supporting services to complement Exempla Lutheran hospital , and clean energy and biotechnology companies to locate in the Clear Creek Crossing or TOD area. Request for BDZ Inclusion May 5, 2014 Page4 STAFF RECOMMENDATIONS The applicant is requesting a 100% rebate ofthe building use tax and fees in an amount estimated at $18,266. As a comparison, BDZ and ESTIP agreements were approved by City Council for the following similar businesses: Business Project Estimated Annual BDZ ESTIP Share Investment Sales Tax Share Back %/$ Back%/$ 291n Ave Restaurant $l.OM $45,000 25%/$6,638 1 25%/$33,750 est Colorado Plus $l.OM $25 ,000 }QQ%/$3,768L 50%/$76,200 max 1. Use Tax and Fees 2. Use Tax only Staff recommends providing a 50% rebate of use tax only estimated at $5,544 for the following reasons: I . The total rebate will be similar to other BDZ agreements for similar projects. 2. The Project meets the objectives of the City's economic development goals by providing redevelopment and jobs in the City of Wheat Ridge. 3. The Project could be a catalyst for the redevelopment of adjacent properties along the 38 1h A venue corridor. 4. The project will redevelop a blighted building in the heart of Main Street as identified in the 38 111 Avenue Corridor Plan adopted by Council in October, 2011. 5. The Project will bring in new tenants and options for shoppers ; and 6. The Project will generate enhanced sales , use and property tax revenues and increased employment. If Council provides the authorization to bring this item forward at a future meeting, staff will provide a resolution and BDZ Agreement for Council consideration. COUNCIL CONSIDERATIONS: Staff would like direction on the proposed BDZ agreement with 38 Ltd. ATTACHMENTS: 1. Daniel O'Brian Architect outline specifications, including elevation plans 2. Chapter 22, Division 5 -Business Development Zone D A N I E l H.O'BRIEN ARCHITECT Archltecture+Piannlng 38TH + TELLER RENOVATION WHEAT RIDGE, COLORADO-PHASE ONE WORK-Building Shell- Outline Specifications-April18, 2014 1. General Requirements - A. Utilities and temporary facilities by Owner. B. Selective demolition - 1. Remove existing interior partitions and doors not scheduled for reuse. 2. Remove the existing gable roof and portions of the existing walls above the existing second floor framing at the west end of the building 3. Remove cabinets and countertops at second floor and salvage for reuse. 4. Remove existing HVAC equipment, ductwork , and plumbing fixtures not scheduled for reuse . 5. Remove existing lighting not scheduled for reuse. Remove any unused conduit and switchgear that will not be used for new electrical work . 6. Remove portion of existing masonry wall at west wall for new windows . 7. Remove 1st floor existing floor finishes to subfloor-(existing floor at west unit is concrete slab on grade; existing floor at adjacent unit to the east is a wood subfloor over crawl space). 8. Remove existing ceiling finish at the west unit. At the adjacent unit to the east , the existing plaster ceiling shall remain in place . 1A. Alternate Pricing (optional scope of work) 1. At the streetfront of the west unit , replace existing painted wood windows with new dark bronze anodized windows with low E 1" insulating glass 2. At the streetfront of the rest of the building , replace existing painted wood windows with new dark bronze anodized windows with low E 1" insulating glass 3. Remove portion of interior bearing walls-(between west end unit and the adjacent unit). 4. Remove the existing plaster on the interior side of the exterior masonry wall on the west side of the west end unit. Clean masonry wall to provide exposed brick finish . 2. Sitework - Daniel H. O'Brien , Architect-1101 Bannock Street , Denver Colorado 80204 Tel 303-623-2330 mp 720 560 3352 danhobrien@zo-architects .com 38 TH + TELLER Page 2 A. Repair asphalt at perimeter of foundation wall work for new stair enclosure. 3. Concrete - A. Foundation work for new columns B. Repair existing slabs adjacent to new columns . 4. Masonry A. Repair existing brick wall at perimeter of new openings -tooth in brick with reclaimed brick from the openings . lnfill portions of some existing openings. B. Provide new brick veneer parapet wall on top of the existing exterior wall at the streetfront of the west end unit and along the west side of this unit. Refer to the attached building elevations for the extent of this work . 5. Metals A. Architectural steel work-Provide steel stringers , railings , and handrails for new stair inside the existing building . B. Steel "canopies " I frames for tenant signs-Assume an allowance of $60 /linear foot for this work. Refer to the building elevations for the extent of this work . 6. Wood A. 2x6 Wall framing for second floor space and new stair enclosure at rear of building . B. Roof framing for new second floor space-2x12' @16 " o,c, typical w/ A-C plywood deck- structure to remain exposed C. Miscellaneous framing to create new openings for new stair to 2nd floor .. D. Miscellaneous wood framing or blocking for support of electrical panels , fixtures , etc . E. Provide dimensional lumber wood stringers and treads for the new exit stair at the south side of the building . 7. Thermal and Moisture Protection A. New foam insulation board at roof -(R38) B. Batt type insulation at new second floor exterior walls-R-21 C. Single membrane roofing over dens deck substrate , metal flashing and metal fascia D. Prefinished metal roof and wall panels-For the roof and south wall panels , use the Berridge Dan iel H . O'Brien , Architect -1101 Bannock Street , Denver Colorado 80204 Te l.303-623-2330 mp 720 560 3352 danhobrien@zo-architects .com 38 TH + TELLER Page 3 "Tee-Panel " system . For the corrugated wall panels, use the Berridge "S-Deck " sytem or approved equivalent. Colors will be selected by the Architect from the manufacturer's standard colors. E. New cement board siding at sides of stair enclosure at rear of building. Provide polycarbonate sheet panels directly on wood framing at south side of stair enclosure , (for daylighting of stair enclosure) F. Interior sealants and Exterior caulking-provide as needed 8. Openings- A. New exterior doors -provide new painted hollow metal doors with full glass lites typical at the four streetfront entrances. The entrance door at the east corner unit shall remain and be refinished. Provide one new ftush hollow metal door for the exit door on the south side of the west end unit. All other existing doors on the south side of the building shall remain in place . C. Door hardware-provide lever type I ADA hardware typical at interior doors. New streetfront exterior entrance door shall be provided with 15" high by :Y.." diameter pull w/ exit device, closer, and weatherstripping . New rear exit doors-exit device w/ lever type latch at exterior, closer, and weatherstripping 9. Finishes A. Provide low level loop commercial carpet at south stair treads and risers. B. Stair treads at the new stair inside the existing building shall be stained and sealed 2x12 Doug .Fir timber treads with a continuous 4" high x 1/8" steel plate screwed to the back of each tread -(open above the steel plate) C. Floor at the ground level of the south stair enclosure shall be stained and sealed concrete. D. Gypsum Board -Gypsum board finish typical at exterior walls at new second ftoor enclosure . E. Paint all new and repaired drywall and plaster. 10. Specialties A. Provide toilet paper holders , ADA grab bars at accessible toilet rooms , mirrors , and paper towel dispensers . 11. Equipment A. Provided by tenant Dan iel H . O'Brien , Arch itect -1 101 Ban nock Street, Denver Colorado 80204 Tel.303 -623-2330 mp 720 560 3352 danhobrien@zo-a rch itects .com 38 TH + TELLER Page4 12. Furnishings A. Provided by tenant 13. Plumbing A. New toilet rooms and fixtures will be part of the tenant finish work . B. Provide gas piping for new HVAC equipment and new hot water heater C. New floor mounted mop sink will be part of the tenant finish work . 14. HVAC A. Provide new rooftop HVAC units to include heating and air conditioning. New exposed circular section sheet metal ductwork for air distribution will be part of the tenant finish work . B. Provide toilet exhaust systems for each toilet room . C. Kitchen exhaust hoods and make-up air systems will be the responsibility of the tenant. 15. Electrical A. Provide power to new rooftop mounted HVAC units and all toilet exhaust systems . B. Existing lighting shall remain to provide temporary interior lighting prior to tenant finish work. C. Existing electrical and data outlets shall be removed . D. Emergency egress lighting -(to be provided in tenant finish work) E. Provide two new 200 amp panels for the new west end tenant space 16. Fire Protection Systems This work shall be part of the tenant finish work . Dan iel H . O'Brien , Architect -1101 Bannock Street , Denver Colorado 80204 Tel.303 -623 -2330 mp 720 560 3352 danhobrien@zo-architects .com ..... .._ IDCf"CINJIIIIIt:/T _ .......... 01 5 0 ROOFPLAN 118' = 1'.()" PLAN LEGEND ~ VOSTNl WAlL TO~ I l 'I· ~~II I IIII' D -1 ... .._. ...... _,._ ..... ._ ... _... -.cu .... 'If: ----""' ....... .. .._ -• ,-~ ~ r " • r _. •..!. 1 i I• _.I I r;·-, I 01 ~ @ SECOND FLOOR PLAN 1/8' = 1'.()" EAITENDI.NT CG GROUNDFLOORP~ 1/8' = 1'-0" 38TH + TELLER WHEAT RIDGE , CO L ORADO oooooo~1pooc oo g ~-··~IUi:'ll:ll DANIEl H. O'BRIEN ARCHITECT ---3038232330 .. 7205803352.-. t 1 Ot BAfft)Q( STRfET DEIMR COI.ORAOO WEITEIC)UNIT Floor Plana A2.0 ...... ll('lA. r--10 WJOIWEUt.. IIIOf fl=====;::====:;;;;:::;c~:;:j~-l ------- • ~~~ .. :w. f--..,.=.'" Fit--+ 0-~~J~ ~~ ,tt,-F ~ -=:fr ii ~~ I---CD NORTH ELEVATION 1/4" = 1'-0" ~ " L_ ·• ..... ~ 13_ ~-v-~~!il'p4~....!1!!1!2!.~ _,.-/ '1/ !IMRD_aJ - ~--·o--~-..:x.to..., . ...... ~ ............. 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WOOD~ 10~-· nDJIAo'll~"l· j/ IIDD-miCOIDn'.....,I'WCL ~ •/I'MMII.c:IOO '*" 10w.JCMIIOJIIQJCISJOiiU ... ts DANIEL H. O'BRIEN 38TH + TELLER ARCHITECT ~-~--I 3031232330 .. WHEAT RIDGE , COLORADO 7205103!52 ..... 1101 EWf«)Q( ST1tEET 1 DENVER COlORADO ~ . af !I;; , ... -====T .. I Elovations I A4.1 ___ ..,... ...u. PNfUS 1011110- (tC:IIICOIIIW.LfOII.:IOJ10l"[Cill'l') lll'tlrll.rASQltOIIMJOIII[IAI..oof' ------~ --..:;.-' .l -_l ~~-.,~~»n COUfl' ....._, -.u NfUS"" CUIUA KWIC -.;.. "'OIUS I F~ /..-.-....... .._ - J / ' :::::J --:::::::::::: ..,.,---D'S'C. .ac -( 10 11(\Wro --- 0 BUILDING SECTION I EAST ELEVATION 1W = 1'-0" (LOOKING WEST) ....... __ .... ~IIOIIIICII71#«J ..W.l """"'l.S •L,.,.-as-~fOII """"'""' ;:.;:"""";"f ---~ :2"'-I I -\! --I I I I l I I ~ / v ...__.,,_, I I I I I I I / t I / "' ! ~ ~ ' ~· + /-----~ I I t t t l •• .-t t 1- =DIIID -1 ~ I ' I~ b =:-I'O.~"t .......... ' '.......,_ I ~ f---DCISft: MOt -.,ru , IIIDNI ' ._ If----~ CD SOUTH ELEVATION 1/4"= 1'.()" --.... DANIEL H. O'BRIEN 38TH + TELLER ARCHITECT www~.c:om Elovollono 3031232330 ... WHEAT RIDGE , COLORADO 7205t03352 .... 1101 &ANO:K STREET A4.2 DEHVER COlORADO ------- 0 Q) c + c " C'l (/) Q) 0 c ro .0 u Q) <( u Q) <( c Q) CD 0 ::i Q) c ro 0 .... -= ~ = c c:::t N Sec . 22-85. -Program established. There is hereby established within the city the "Wheat Ridge Business Development Zone" program . (Ord. No . 888, § 1, 1-13-92; Ord. No . 1272, § 1, 12 -9-02) Sec. 22-86. -Legislative declarations. (a) (b) (c) (d) The city council of the city hereby finds and declares: (1) (2) (3) That the health, safety and welfare of the people of this city are in large part dependent upon the continued encouragement, development and expansion of opportunities for employment in the private sector in this city; That there currently exists in this city businesses or vacant land which require new development or revitalization opportunities to overcome conditions of unemployment, underemployment, net out-migration of the population, diminution of tax revenues, chronic economic distress and blighting influences such as, but not limited to , deterioration of business districts, deterioration of public infrastructures, traffic and drainage problems or sudden severe economic dislocations; That by creating new development, redevelopment or expansion opportunities for businesses within the city the city council will increase the likelihood that new and improved businesses will generate more municipal sales and use tax revenues for the city in the future . It is therefore declared to be the policy of the city, in order to provide incentives for private enterprises to expand or for new businesses to locate in the city, to develop a program which empowers the city council to designate portions of the city as a "business development zone" and to provide for the abatement of certain categories of fees, taxes and other business development- related charges for new development or redevelopment within such districts. The city council has enacted this division 5 of article I of chapter 22 of the Code of Laws as a joint benefit to the public at large and to private owners for the purposes of reducing blight in our business districts and of providing the city with increased sales and use tax revenues generated upon and by properties improved as a result of this program and allowing owners and proprietors opportunities to improve properties which generate sales activities, which improvements make those properties more competitive in the marketplace and further provide to owners and proprietors additional contingent sources of revenues for ungrading such properties. The city council specifically finds and determines that creation of this "business development zone" division and the exercise of the powers enumerated herein are consistent with and promotes the public health, safety and general welfare of the citizens of Wheat Ridge . (Ord. No . 888, § 1, 1-13 -92; Ord. No. 1993 -947, § 1, 12 -13-93; Ord. No . 1272, § 1, 12 -9-02) Sec. 22-87.-Definitions. As used in this division , the following phrases shall have the following meanings unless the context clearly indicates another meaning: (1) (2) (3) (4) The phrase eligible city fees , charges and taxes shall mean and shall be limited to use tax on furniture and fixtures associated with the initial development or redevelopment "project," use tax on building materials, building permit fees and zoning fees. The phrase expected incremental future sales and use tax revenue shall mean the amount of the additional sales and use tax revenue, as projected by the city, expected to be generated during the council-designated time period from the time of completion of the "project" over and above the sales and use tax fees generated on the premises in the twelve (12) months preceding the application described in section 22-88 The phrase owner or proprietor shall mean the record owner, tenant or operator of an individual business or, in the case of a shopping center, the owner of the real property upon which more than one business is operated. Project shall mean the specific development or redevelopment expenditures which relate both to the abatement of "eligible city fees, charges , and taxes" and "expected incremental future sales and use tax revenues." (Ord . No . 888, § 1, 1-13-92; Ord. No. 1272, § 1. 12-9-02) Sec. 22-88 . -Participation. Participation in the business development zone program shall be based upon approval by the city council , exercising its legislative discretion in good faith. Any owner or proprietor of an established , proposed or newly purchased business, or the owner or proprietor of an existing business which wishes to expand , may apply to the city for inclusion within the program . Abatement or sharing of eligible city fees, charges , and taxes shall , upon approval of the application by the city council , be granted up to the amount of expected incremental future sales and use tax revenue to be generated by the project during the agreed to time period . (Ord. No . 888, § 1, 1-13-92; Ord. No . 1272, § 1, 12-9-02) Sec. 22-89. -Approval of agreement; use of funds generally. Approval by the city council of an agreement implementing the provisions of this division shall entitle the applicant to share in the eligible city fees, charges and taxes up to the amount agreed by the city council ; provided, however, that applicant may use such amounts only for the purpose of developing or redeveloping the business within the approved business development zone, which purposes shall be specifically enumerated in the agreement provided for in section 22-94 hereof. (Ord . No . 888, § 1, 1-13-92; Ord. No. 1272, § 1, 12-9-02) Sec. 22-90. -Uses enumerated. The uses to which the eligible city fees , charges and taxes may be put by an applicant shall be strictly limited to those which are approved by the city council and relate directly to the development or redevelopment of businesses within the city, which developed or redeveloped businesses will generate more municipal sales and use tax revenues for the city in the future. Priority shall be given to all businesses which make application for inclusion within this program and who agree to utilize the eligible city fees, charges and taxes for the public or public-related purposes identified section 22-78 of this Code of Laws. (Ord. No . 888, § 1, 1-13-92; Ord. No . 1272, § 1, 12-9-02) Sec. 22-91. -Increments, sharing of funds. The base figure for eligible city fees, charges and taxes shall be divided into twelve (12) monthly increments, which increments are subject to agreement between the parties and approved by the city council, and which increments shall be reasonably related to the amount of sales and use taxes generated on the premises in the twelve (12) months preceding the application received by the city for participation in this program . The accounting and payment provisions of sections 22-79 and 22-80 hereof are hereby declared to be applicable to any application approved hereunder. (Ord. No . 888, § 1, 1-13-92; Ord. No . 1272, § 1, 12-9-02) Sec. 22-92. -Capital improvement fund. The one (1) percent of use taxes earmarked for the capital improvement fund may be utilized in this business development zone program for public improvements so long as the same are within the meaning of the phrase capital improvements as defined in the voter-approved sales tax referendum previously held within the city, and provided the public improvements are found and determined by the city council to be capital improvements which could be provided by the city from the capital improvement fund but for the provision of such improvements by the applicant. (Ord. No . 888, § 1, 1-13-92; Ord. No. 1272, § 1, 12-9-02) Sec. 22-93. -Criteria for approval of application. (a) Approval of an application for inclusion in this business development zone program shall be given by the city council at a public hearing held as a portion of a regularly scheduled city council meeting based upon the following criteria: (1) (2) (3) (4) (5) The amount of expected incremental future sales and use tax revenue which [can] reasonably be anticipated to be derived by the city through the expanded or new tax generating business; The public benefits which are provided by the applicant through public works, public improvements, additional employment for city residents, etc.; The amount, if any, of city expenditures which may be deferred based upon public improvements to be completed by the applicant; The conformance of the applicant's property or project with the comprehensive plan and zoning ordinances of the city; (b) (c) The agreement required by section 22-94 hereof having been reached, which agreement shall contain and conform to all of the requirements of such section. Approval of any application shall be made by motion adopted by a majority of the entire city council. The city council may by three-fourths(%) majority vote approve exceptions to the provisions of this division when such exceptions are found to be in the public's interest and such exceptions provide substantial benefit to the city. (Ord. No . 888, § 1, 1-13 -92; Ord. No . 1993-947, § 2, 12-13-93; Ord. No . 1272, § 1, 12-9-02) Sec. 22-94. -Agreement required. Each application for approval to the city council shall be subject to approval by the council solely on its own merits. Approval of one application shall not require, or be deemed precedent for, approval of any other application . Approval of an application shall require that an agreement be executed by the owner and the city, which agreement shall, at a minimum contain: ( 1) (2) (3) (4) (5) (6) (7) (8) A list of those public or public-related improvements which justify applicant's approval, and the amount which shall be spend on such improvements; The maximum amount of expected incremental future sales and use tax revenue and the maximum time during which the agreement shall continue, it being expressly understood that any such agreement shall expire and be of no further force and effect upon the occurrence of the earlier to be reached of the maximum time of the agreement (whether or not the maximum amount to be shared has been reached) or the maximum amount to be shared (whether or not the maximum time set forth has expired); A statement that this is a personal agreement which is not transferable and which does not run with the land ; That this agreement shall never constitute a debt or obligation of the city within any constitutional or statutory provision; The base amount which is agreed upon by month, and the fact that if, in any month as specified, expected incremental future sales and use tax revenue received from the property does not at least equal such amount, that there shall be no sharing of funds for such month; The base amount shall be agreed upon, which shall consider the use taxes generated by the property in question, or a similar property within the city in the event of a new business; A provision that any expected incremental future sales and use tax revenue shall be escrowed in the event there is a legal challenge to this business development zone program; (9) An affirmative statement that the obligations, benefits and/or provisions of this agreement may not be assigned in whole or in any part without the expressed authorization of the city council, and further that no third party shall be entitled to rely upon or enforce any provision hereof; Any other provisions agreed upon by the parties and approved by the city council. (Ord. No . 888, § 1, 1-13-92; Ord. No . 1272, § 1, 12-9-02) Sec. 22-95. -Joint venture liability. The city council has enacted this business development zone as a joint benefit to the public at large and to private owners for the purposes of providing the city with increased tax revenues generated upon and by properties improved as a result of this program; public improvements being completed by private owners through no debt obligation being incurred on the part of the city, and allowing applicants an opportunity to improve properties which generate sales and other business activities. The city council specifically finds and determines that creation of this business development zone is consistent with the city's powers as a home rule municipal corporation , and that exercise of such powers in the manner set forth herein is in furtherance of the public health, safety and welfare. Notwithstanding any provision hereof, the city shall never be a joint venture in any private entity or activity which participates in this business development zone program , and the city shall never be liable or responsible for any debt or obligation of any participant in this business development zone. (Ord . No . 888, § 1, 1-13 -92; Ord. No . 1272, § 1, 12 -9-02) Sec . 22-96.-ESTIP and TIF. If the applicant, owner or proprietor participates in the city's Enhanced Sales Tax Incentive Program ("ESTIP") or if the owner's or proprietor's business is located in an urban renewal area in which all or a portion of sales tax revenues have been pledged as part of a tax increment financing program, he or she shall be ineligible for participation in this business development zone program . (Ord. No . 888, § 1, 1-13 -92; Ord. No . 1272, § 1, 12 -9-02) Sees. 22-97-22-99 .-Reserved . ~""~ ... r City of ~Wheat&_dge ~OFFICE OF THE CnY MANAGER TO: FROM: DATE: SUBJECT: Memorandum Mayor and City Council (\~ Patrick Goff, City ManagerW Gerald Dahl , City Attorney April 30, 2014 Attachments to Xcel Energy Light Poles On May 8 , 2012 , the City received a letter from Rob Osborn from Xcel and a "2012 Changes to Xcel Energy's Outdoor Lighting Attachment & Banner Policy'' document (Attachment 1 ). The new policy required , as of December 31 , 2012 , that all attachments such as banners , advertisement materials , flags and other non-police equipment to Xcel light poles and distribution facilities would have to be removed. Police equipment was defined as attachments associated with police and fire safety activities. The City has historically attached banners on Xcel light poles along the 38th A venue corridor from Wadsworth to Harlan. The City owns the pedestrian lights from Harlan to Sheridan so we are still able to hang attachments to these facilities without Xcel's approval. The Applewood Business Association has also historically attached American flags to Xcel facilities along the Y oungfield Street corridor. As the City continues to revitalize its commercial corridors, the ability to attach banners , flags and advertisements or to hang flower pots to utility poles is an important aspect in marketing and branding the community from both the private and public sectors' perspective. In addition to the 38111 A venue corridor, the City may want to utilize Xcel facilities along other corridors such as 291h, 32"d or 44th for these purposes in the future. Many other communities in the Denver metro area also agreed and in 2013 a consortium of these cities formed to negotiate a compromise to Xcel's new policy. Attachment 2 is a summary from Xcel of the approach to these negotiations. After months of negotiations with Xcel , the consortium of cities was unable to finalize an agreement with Xcel that would appeal to a majority, if any, of those cities who had been involved in the negotiations . Xcel proposed a "last and best" agreement which still contains several stipulations that are of concern of the City (Attachment 3). The primary objections to the proposed Xcel Agreement are: 1. Insurance and Indemnity -Section 7(b) -The language proposed by Xcel would have resulted in CIRSA members being out of compliance with their obligations. Municipalities do not insist upon a unilateral right to increase Xcel 's coverage in franchise agreements, and it is not appropriate here. 2. Compliance with Laws -Section 9(c)-There is unifonn agreement among municipal attorneys that we cannot contract away a governing body's police power authority. 3. General Provisions -Section 14(d)-If a municipality agrees to the first option in Section 7(a) it is agreeing to indemnify to the extent permitted by law . That means we are deferring a detennination of that issue to a later date. Municipalities are NOT taking the position that they are legally permitted to indemnify. We cannot make that representation here. In addition, Section 7(a) of the Agreement states that, The City will not conduct any activities related to the attachment, maintenance or removal of Ornamental Pole Attachment with City employees. City will conduct all activities relat ed to the attachment, maintenance or removal of Ornam ental Pole Attachments through Qualified Contractors who have executed the form of Contractor Agreement. At this time , staff is unsure if a contractor can be hired that will agree to the form of the Contractor Agreement. Council has several options to consider in moving forward : 1. Agree to the draft Joint Use Agreement proposed by Xcel as written. Xcel is unwilling to accept any amendments to the Agreement. Would require the City to find a contractor that would agree to the Xcel Contractor Agreement. 2. Consider purchasing the Xcel facilities which would allow the City to attach items at its own discretion. The City requested prices from Xcel to purchase their facilities on December 5 , 2012 . We received an initial response from Rob Osborn on December 12, 2012 but have not received direct answers to our inquiries (Attachment 4). 3. Adopt a similar ordinance such as Section 16-2-20 of the Northglenn Municipal Code to require joint use of utility facilities in City rights-of-way (Attachment 5) The City ofNorthglenn has also adopted a similar ordinance . 4. Do nothing and only attached items to City owned facilities. ATTACHMENTS: 1. Letter from Rob Osborn, Xcel, dated May 8, 2012 and "2012 Changes to Xcel Energy's Outdoor Lighting Attachment & Banner Policy" 2. Xcel summary of approach to negotiations 3. Draft Joint Use Agreement Regarding Street Light Poles Owned by Public Service Company of Colorado 4. Letter from City to Xcel requesting pricing ofXcel facilities, dated December 5, 2012 and response email from Rob Osborn dated, December 12,2012. 5. City ofNorthglenn, CO Municipal Code Section 16-2-20 fl Xcel Energy• I E I P 0 II S I I L E I Y II AT U I E• . May 8, 2012 Patrick Goff City Manager, Wheat Ridge 7500 W 29th Ave . Wheat Ridge, CO 80033 Dear Patrick Goff: Re : Attachments to Xcel Energy Ught Poles Robert J. Osborn , Esq. DlrKtor -Community RMiklns Public Service eom,.ny o1 Colorado 1800 Larime r St~MI , SUite 1~ Denver. CO 80202 1 am writing to update you on a growing issue that is creating safety concerns for Xcel Energy as it relates to the attachment of banners, advertisement materials, flags , and other non-police equipment to our light poles and distribution facilities. Xcel Energy is committed to helping the communities we serve by enhancing their business and shopping districts. However, Xcel Energy must balance our commitment to the cities ' goals with safety concerns we have with the installation of non-tariff-approved police attachments on our facilities . Safety is a primary concern of Xpel Energy and the use of our facilities for purposes other than policing the publ ic right of ways is not consistent with our tariffs or our franchises . Because of the growing interest from the public to use our facilities for attachments , that they were never designed to hold or contemplated for such use , Xcel Energy can no longer permit or approve the i nstallation of banners , flags, decorations, or other non -permitted attachments on our facilities . Please see the attached informational sheet regarding this matter for reference . This has been prepared to provide you with a general overview of the issue and why Xcel Energy is taking steps to adhere to our tariffs , subsequently not permitting the use of our facilities for non police attachments . Please note that when we reference •non-police attachments• in this letter, we mean any uses that are not permitted by our tariffs . While we understand that this news may concern you , we wish to extend our comm itment to you as our customer to work with you and hopefully assist you with the development of your own banner program in your community that is consistent with our tariffs , your local ordinances , and maintaining public safety. As such , I am available to meet with you and members of your staff or community to further discuss this development at your convenience . If you wish to arrange a meeting with me to discuss this matter, please contact my assistant, Barbra Hamblin , at (303) 294-2788 and she will make sure I am able to visit with you . If you wish to discuss this with me over the phone , I can be reached at my office (303) 294-2873 or on my mobile phone at (303) 437 -0668 . Best wishes , ~ 2012 Changes to Xcel Energy's Outdoor Lighting Attachment & Banner Polley While Xcel Energy has allowed cities and other groups to attach banners to our street lighting and distribution poles, we have had a tariff in place since the 1950s that specifically bans attachments that are not related to police use . By police use, we mean permitted attachments under our tariffs that are associated with police and fire safety activities, with such attachments being defined in this policy as Pollee Attachments .· Our tariffs are approved by the Colorado Public Utilities Commission (PUC) and are on file with the PUC. For safety reasons, and to be in compliance with the tariff, the company cannot continue to allow the installation of non-Police Attachments on our streetlight and distribution poles . Effective December 31 , 2012, all attachments that are not Police Attachments must be removed from all Xcel Energy facilities . We selected this date to give cities and jurisdictions adequate time to fulfill their annual planning and use banners and also allow adequate time to remove their attachments. Polley between May 30-December 31,2012 • We will honor arrangements for banner attachments with organizations that have historically used our streetlights and distribution poles ; provided, the last day to install any new attachments is September 1, 2012. However, groups and cities will need to submit their request to attach banners no later than July 30 , 2012 , to allow time for Xcel Energy to perform safety inspections of the requested streetlight poles to determine if they may be used . All requests also will have to conform to all company policies , Including insurance requirements . All attachments , including banner arms, must be removed by December 31, 2012. • Aside from this one accommodation, no attachments proposed for locations that have not been previously approved can be installed or expanded during the period from now through December 31 , 2012 How attachments started on streetUghts Historically our distribution facilities (commonly referred to as power or telephone poles) lined most streets in the communities we served . They provided power services and/or phone services to our customers and telephone company customers . As these distribution lines went from being overhead to being buried, we installed streetlight poles where those lights previously were on distribution poles . Over time communities asked to install Police Attachments on these streetlights . The migration of non-Police Attachments (banners and holiday decorations) to our streetlight poles followed . Tariff terms govern pole attachments Our tariff specifically restricts any attachments (except Police Attachments) to our streetlights and facilities . The franchises we have with our communities Integrate the tariffs by reference, and have provisions that allow or deny attachments (police and non-police) based on safety concerns . The company is concerned about the public's safety and by limiting non-Police Attachments on our streetlights is one way we can manage the safety of our streetlight system . That's why we are no longer allowing illegal , unpermitted attachment of banners and signs to our facilities. Tfmellne to comply with tariff We understand that some campaigns already may be planned that include attaching banners to our facilities . That's why we are setting September 1 , 2012, as the last day for any new attachments to be installed . However, we need to receive requests to attach banners by July 30, 2012 so we have lead time to perform safety inspections. All attachments. including the arms , must be removed by December 31, 2012 . After that date any remaining attachments will be removed by Xcel Energy at the jurisdiction's expense. Alternatives seen In other communities We have spent a considerable amount of time thinking of how advertising and branding campaigns can be accomplished in the public rights of way on non-Xcel Energy facilities . Here are some options cities and communities may want to consider: • Install "banner-only" poles: Installing and designating banner-only poles provide a permanent space for these attachments. Such poles would be engineered to handle stresses that attachments can place on poles. • Consider having your community buy a section of streetJights: By buying a small section of streetlights, which your jurisdiction also would be responsible for maintaining and upgrading as needed to support attachments, you would not be subject to our tariff. This provides an opportunity for your city to find out if It would like to purchase more lights. However, purchasing a section of streetlights would be subject to the terms of our tariffs, including such requirements as buying a minimum number of poles to be , the purchaser paying certain costs, and the removal of other loads from the electric system , among other tariff issues. • Explore having a Business Improvement District (BID) construct or buy a section of streetlights: Similar to the suggestion above, a Business Improvement District (BID) could purchase the streetlights within their district. The group would be responsible for maintaining and upgrading the lights to support attachments , but the BID would not be subject to our tariff (although the purchase process would be subject to tariff terms). • Explore developing a franchised banner I advertising program with the city: This allows the city to have a third party install , maintain , and provide banner services throughout the community on banner-only poles . The city has the opportunity to develop a revenue return for the franchised operator who provides these services for the use of the public right of way (ROW). xc:elenergy .com I C 2012 Xce l Energy Inc I Xce l Energy is a reg istered trademartt of Xcel Energy Inc . I Public Service Company of Colorado , an Xcel Energy Company JOINT USE AGREEMENT REGARDING STREET LIGHT POLES OWNED BY PUBLIC SERVICE COMPANY OF COLORADO This JOINT USE AGREEMENT REGARDING STREET LIGHT POLES OWNED BY PUBLIC SERVICE COMPANY OF COLORADO ("Agreement") is entered into and effective as of the __ day of 2013 ("Effective Date"), by and between Public Service Company of Colorado, a Colorado corporation ("PSCo"), and ---------------------------------("City"). RECITALS A. PSCo owns certain street light poles located within the boundaries of the City described on Exhibit A, attached hereto and incorporated by this reference (the "Poles"); B. City has requested permission from PSCo to attach ornamental banners, planters, way finding signs (e.g. "historic district next right"), holiday lights and other seasonal decorations, meeting the criteria in the Specifications defined below (each an "Ornamental Pole Attachment"), to the Poles; C. The use of the Poles for Ornamental Pole Attachments is undertaken as part of the operations of the City; D. PSCo is willing to grant permission to City for this purpose, subject to the terms and conditions stated in this Agreement; E. Ornamental Pole Attachments are not included as or a part of electric service under the Company's electric tariff including street lighting service; and F. This Agreement is entered into to set forth the process and standards for the temporary attachment of Ornamental Pole Attachments to the Poles. AGREEMENT 1. License. (a) PSCo hereby grants City a license, for the Term (defined below), to attach Ornamental Pole Attachments to the Poles, subject to compliance by the City with the terms and conditions of this Agreement. This Agreement does not create a lease, easement or other real property interest. Nothing contained in this Agreement shall be deemed or construed to create a partnership or joint venture of or between PSCo and City, or to create any other relationship between the parties other than that of licensor and licensee. (b) The license granted by this Agreement does not include electricity to power any holiday lights or other aspect of an Ornamental Pole Attachment. Electricity for Ornamental Pole Attachments shall be supplied by PSCo, subject to and in accordance with PSCo's tariff on file with the Colorado Public Utilities Commission, as amended from time-to-time. (c) The license to attach an Ornamental Pole Attachment to any particular Pole may be revoked by PSCo: (i) on twenty (20) days notice if the City is in default of any provision of this Agreement; and (ii) without notice if any Ornamental Pole Attachment interferes 1 with PSCo's operation of any Pole for street lighting purposes or if deemed prudent by PSCo for the protection of its Poles because of occurring or forecast weather conditions, including wind. 2. Ornamental Pole Attachment Criteria (a) The size, type , material and all other aspects of each Ornamental Pole Attachment and the method of attachment of the Ornamental Pole Attachment to any Pole must at all times comply with specifications that may be adopted from time to time by PSCo (the "Specifications"). PSCo reserves the right , without approval from City, to rescind , supplement and amend the Specifications at any time. The Specifications as of the Effective Date are attached hereto as Exhibit B. At any time, PSCo may notify the City, in writing, of revisions to the Specifications. Thirty (30) days after PSCo provides such notice, the Specifications, as revised, shall be observed and complied with, by the City with respect to existing and future Ornamental Pole Attachment attachments . (b) PSCo does not approve or endorse any content or message on any Ornamental Pole Attachment. 3 . Attachment and Removal of Ornamental Pole Attachments. (a) The City shall not install an Ornamental Pole Attachment to a Pole if, when considered in combination with other attached items, e .g . other Ornamental Pole Attachments, City street signs, traffic control signs, cameras, or overhead wires, the specified limits for such Pole defined in Exhibit B will be exceeded. (b) The City shall not interfere with PSCo's use of the Poles for their intended purpose, including that of street lighting, at any time during the installation, operation or removal of Ornamental Pole Attachments. (c) Attachment and removal of Ornamental Pole Attachments from Poles shall be done without expense to PSCo. (d) The City shall remove Ornamental Pole Attachments from Poles as follows: (i) all Ornamental Pole Attachments shall be removed prior to the expiration or termination of the Term of this Agreement or (ii) any particular Ornamental Pole Attachment(s) shall be removed within three (3) business days after the revocation of the license for any such Ornamental Pole Attachment(s). Notwithstanding the foregoing, in the event that PSCo revokes the license for any Ornamental Pole Attachment because it interferes with PSCo's use of the Pole or because of inclement weather, PSCo may remove the Ornamental Pole Attachment, without notice, and without liability to the City or any other person, except for injury or damage to persons or property caused by the sole negligence or willful misconduct of PSCo. (e) Any Ornamental Pole Attachment that is not removed by the City as required by this Section 3 may be removed and disposed of by PSCo , without liability to any person, and 2 at the expense of the City. PSCo will use commercially reasonable efforts to return the removed Ornamental Pole Attachment to the City. PSCo's removal, handling and transportation of an Ornamental Pole Attachment will not create a bailment and PSCo will have no liability to the City or any other person for any loss or damage to the Ornamental Pole Attachment as a result of the removal, handling or transportation activities. (f) City will not attach any Ornamental Pole Attachment to a street light pole owned by PSCo that is not included on the list of Poles contained on Exhibit A, as it may be amended as provided herein, nor will the City issue a permit allowing any third party to do so. 4. Damage to Poles. City shall pay for PSCo to repair damage to any Pole which arises out of, or results from, the installation, maintenance or removal of any Ornamental Pole Attachment from any Pole. City shall promptly report to PSCo, in writing, the occurrence of damage to any Pole occasioned by the City's use of the Poles, or otherwise observed by the City. 5. No Cost to PSCo. Whenever, in this Agreement, anything is to be done or performed by the City, it shall be done or performed at no cost to PSCo. 6. Inspection and Monitoring. (a) PSCo may perform inspection and testing of any Pole at any time, and may monitor any activities of the City in connection with the installation, maintenance or removal of any Ornamental Pole Attachment. Notwithstanding the foregoing, PSCo will have no duty to inspect or test Poles or to monitor any activities conducted by City. Any inspection, testing or monitoring by PSCo is for the sole benefit ofPSCo and shall not create any duty, or obligation to the City or any other person or entity and the City hereby releases PSCo from all claims arising out of the use of the Poles. No permission by PSCo for the attachment of any Ornamental Pole Attachment will constitute a representation or warranty by PSCo as to the adequacy of the Pole to support any Ornamental Pole Attachment, or the conformity of the proposed attachment with any applicable codes or laws. Any such permission will merely be the consent of PSCo to the attachment of the Ornamental Pole Attachment(s) pursuant to the terms of this Agreement. No failure by PSCo to object to the attachment of any Ornamental Pole Attachment made in violation of this Agreement shall constitute a waiver of its right to remove, or object to such Ornamental Pole Attachment. (b) IfPSCo, in its discretion, determines that any Pole is not suitable for Ornamental Pole Attachments, because of damage, condition, the presence of additional attachments, or other reason, PSCo may withdraw such Poles from this Agreement by giving notice to the City designating the Poles being withdrawn. Thirty (30) days after such notice is given, Exhibit A shall be deemed automatically amended to remove the Poles designated by PSCo in such notice. Within such thirty (30) day period, the City shall remove any Ornamental Pole Attachments on such Poles, subject to the terms of Section 3. 3 7. Insurance and Indemnity. (a) [The City shall be responsible for, and to the extent permitted by law, City agrees to defend , indemnify and save PSCo, its officers, agents and employees harmless from and against, any and all loss, expense, damage, injury, liability and claims therefor, resulting directly or indirectly from or out of the attachment, maintenance or removal by the City of Ornamental Pole Attachments or the use or exercise by City of the rights granted hereunder, including, without limitation, claims for injury or death to employees or subcontractors, claims arising from, alleged to arise from, or related to , any injury allegedly or actually occurring, relating to the effects of electromagnetic fields , stray current or induced current, and any and all loss, expense, damage, injury, liability and claims of any other person, however caused.] OR [The City shall be responsible for any and all loss , expense, damage, injury, liability and claims therefor, resulting directly or indirectly from or out of the attachment, maintenance or removal by the City of Ornamental Pole Attachments or the use or exercise by City of the rights granted hereunder, including, without limitation, claims for injury or death to employees or subcontractors, claims arising from , alleged to arise from , or related to , any injury allegedly or actually occurring, relating to the effects of electromagnetic fields , stray current or induced current. The City will not conduct any activities related to the attachment, maintenance or removal of Ornamental Pole Attachments with City employees. City will conduct all acti v ities related to the attachment, maintenance or removal of Ornamental Pole Attachments through Qualified Contractors who have executed the form of Contractor Agreement attached hereto as Exhibit C prior to commencing work. For the purpose of this Agreement, "Qualified Contractor" means an individual or non-governmental entity with adequate experience and financial capabilities to perform the required work and satisfy the indemnity obligations imposed by this Agreement, and possessing valid licenses and certifications required by law or which are customary for the type of work being performed. The City's use of a Qualified Contractor will not relieve it of its responsibilities set forth in this Section 7.] (b) During the longer of the time that any Ornamental Pole Attachment(s) is attached to a Pole, or the expiration or termination of this Agreement, the City will maintain general liability and auto liability insurance and will cause PSCo to be named additional insured under such policy/policies. Insurance required to be maintained by the City under this Agreement will be for no less than the coverage and limits set forth in Exhibit D-1 attached hereto, provided if the City is insured through CIRSA, the coverage and limits will be as set forth on Exhibit D-2. The liability of City is not limited to available insurance coverage. The dollar amount of required insurance coverage is subject to review by PSCo at the end of each three (3) year period following the Effective Date. Following such review, PSCo may notify the City, in writing, of reasonable increased requirements . Thirty (30) days after such notice, this Agreement shall be deemed automatically amended to reflect the modified amount of required insurance coverage. 4 (c) City accepts the Poles "AS IS" without any obligation ofPSCo to construct, alter, or improve any Poles, and without any express or implied warranties of any kind, including any warranty or representation of fitness for a particular purpose or any use. All materials, equipment, work, and installations of any nature brought upon or installed on the Poles by or on behalf of City shall be at the risk of City. Neither PSCo nor any party acting on PSCo's behalf shall be responsible for any damage or loss or destruction of Ornamental Pole Attachments, arms or any other equipment or items brought to or installed on the Poles and City hereby releases PSCo from all claims arising out of loss, damage or destruction of such items. (d) City shall keep the Poles free from any liens arising from work performed, materials furnished, or obligations incurred by or at the request of City or its permittees. If any lien is claimed against the Pole as a result of the acts or omissions of City, or City's employees, agents, contractors, or permittees, City shall discharge the lien or bond the lien in a manner reasonably satisfactory to PSCo within thirty (30) days after City receives written notice that a lien has been claimed. If City fails to discharge or remove the lien within the thirty (30) day period, City shall pay to PSCo on demand the actual amount paid by PSCo for the discharge or satisfaction of any such lien, and all reasonable attorneys' fees and other legal expenses ofPSCo incurred in defending any such action or in obtaining the discharge of such lien. (e) Notwithstanding any provision of this Agreement, the parties understand and agree that the City has not waived the applicable rights, immunities and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et ~.,as it may be amended from time to time. 8. No Third Party Beneficiary; Assignment and Sublicensing. (a) Nothing in this Agreement shall be deemed to be a gift or dedication of any Pole, portion thereof, or interest therein, to the City, the general public, or for any public use or purpose whatsoever. Except as herein specifically provided, no right, privileges or immunities of PSCo or the City shall inure to the benefit of any third-party nor shall any third-party be deemed to be a beneficiary of any of the provisions contained herein. Nothing herein contained shall be construed to compel PSCo to maintain any Poles for a period longer than dictated by its own service requirements. (b) City may not assign, transfer, or encumber this Agreement, or any portion thereof nor shall any assignment or transfer of this Agreement be effectuated by operation of law or otherwise (any of the foregoing being hereinafter referred to as an "Assignment"). Any Assignment or attempted Assignment by City will terminate this Agreement (subject to the survival provisions set forth in Section 13(d) below). City shall not permit or allow the use of the Poles by any other person or entity except for a Permittee in accordance with subsection 8(c) below. (c) City may permit use of the Poles by third parties (a "Permittee") in strict compliance with this Agreement, provided that prior to any use of the Poles by or on behalf of any 5 Permittee, the City delivers to PSCo an Assumption Agreement in the form attached hereto as Exhibit E executed by the Permittee, along with evidence that the Permittee maintains insurance coverage in accordance with Exhibit D-1, naming PSCo as an additional insured . The insurance required under this subsection 8(c) shall be maintained during the entire period of use of the Pole by the Permittee. A default by any Permittee shall be a default by City under this Agreement. No delegation of rights by City will release or limit its obligations under the Agreement. 9 . Compliance with Laws. (a) The City shall bear the sole obligation of obtaining such other authority or rights as the City may need in addition to the rights provided in this Agreement for the installation , operation and removal of Ornamental Pole Attachments and use of the Poles. City shall apply for all permits and other governmental approvals necessary for City to attach , maintain , and remove the Ornamental Pole Attachments from Poles . (b) PSCo shall apply for all permits of general application necessary for any work it undertakes in connection with this Agreement, provided that any cost or expense incurred by PSCo in connection with the application for such permits , including without limitation , permit fees , shall be waived by the City. (c) The terms of this Agreement supersede any City ordinance or regulation relating to the use of Poles for Ornamental Pole Attachments . 10 . No Waiver. The failure ofPSCo to insist upon strict performance of any of the terms , covenants or conditions hereof shall not be deemed a waiver of any rights or remedies PSCo may have hereunder, at law or in equity, and shall not be deemed a waiver of any subsequent breach or default in any of such terms, covenants or conditions. No waiver by PSCo of any provision of this Agreement shall be effective or binding on PSCo unless made in writing by an authorized representative of PSCo and no such waiver shall be implied from any omission by PSCo to take action in respect thereto. No express written waiver shall affect any other default or provision ofthis Agreement, nor cover any other period of time other than as specified in such express waiver. 11 . Authority . PSCo and the City each represent and warrant to the other that the person executing this Agreement on its behalf has been fully empowered to execute and deliver this Agreement and that it possesses the legal authority to enter into this Agreement and that it has taken all actions required by its procedures , by-laws , and/or applicable law to exercise that authority, and to lawfully authorize its undersigned signatory to execute this Agreement and to be bound to its terms. 12. Term. (a) This Agreement shall have an initial term ("Term") often (10) years from the Effective Date. (b) Upon the expiration of the initial term , the Term ofthis Agreement shall automatically renew for additional terms of one (1) year, provided following the initial Term , either 6 party may terminate this Agreement at any time by giving no less than thirty (30) days written notice to the other party. (c) Notwithstanding any other provision of this Agreement which may be interpreted to the contrary, PSCo may terminate this Agreement at any time during the Term if it reasonably determines that the use of the Poles for Ornamental Pole Attachments is inconsistent with engineering, safety or operational standards. Termination will be effective thirty (30) days after PSCo delivers written notice to the City stating with reasonable specificity the engineering, safety or operational issue. 13. Notices. Any notice, consent, request or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed given: (i) when delivered personally, or (ii) on the first business day that is three (3) days following mailing by certified or registered mail, return receipt requested, postage prepaid, or (iii) the next business day after dispatch by a nationally recognized overnight delivery service, in any event, addressed to the party's address as follows: If to City: If to PSCo: with required copy to: Xcel Energy 1800 Larimer Street, Suite 1100 Denver, CO 80202-5534 Attention: Legal Department or to such other address as such party, by ten (1 0) days prior written notice given as herein provided, shall designate, provided that no party may require notice to be sent to more than two (2) addresses. Any notice given in any other manner shall be effective only upon receipt by the addressee. 14. General Provisions. (a) Nothing herein contained shall be construed as affecting the rights or privileges previously granted by PSCo, by contract or otherwise, to others not parties to this Agreement, to use any Pole covered by this Agreement, and PSCo retains the right to continue, extend, and grant such rights or privileges. The attachment privileges herein granted shall at all times be subject to such existing and future contracts and arrangements. 7 (b) This Agreement incorporates all agreements and stipulations between PSCo and City as to the attachment of Ornamental Pole Attachments to Poles and no prior representations, course of conduct, or statements , verbal or written, shall modify, supplement or change the terms of this Agreement. (c) This Agreement shall be governed by and construed in accordance with the laws ofthe State of Colorado , without giving effect to principles of conflict of laws. This Agreement is subject to the terms ofPSCo's tariff on file with the Colorado Public Utilities Commission , as amended from time-to-time. (d) The City's covenants , agreements, releases and indemnity obligations shall survive the expiration or termination of this Agreement. (e) Time is of the essence ofthis Agreement. (f) The title and section headings contained in this Agreement are for purposes of reference only and shall not limit or define the meaning of any of the terms or provisions hereof. The exhibits referenced in this Agreement, as the same may be amended as provided herein , shall be deemed incorporated into this Agreement in their entirety. PUBLIC SERVICE COMPANY OF COLORADO Signature:----------------- Name (printed or typed): __________ _ Title --------------------- CITY: Signature:------------------ Name (printed or typed): __________ _ Title: 8 EXHIBIT A IDENTIFICATION OF POLES 9 EXHffiiTB SPECIFICATIONS 10 EXHffiiTC CONTRACTOR AGREEMENT This Contractor Agreement is executed as of , by the undersigned ("Contractor") for the benefit of Public Service Company of Colorado, a Colorado corporation ("PSCo"). I. Contractor has been hired by the City of (the "City") to attach, maintain or remove an Ornamental Pole Attachment to a Pole ("Work") in connection with the City's exercise of its rights under that certain Joint Use Agreement Regarding Street Light Poles Owned By Public Service Company of Colorado (the "Agreement") entered into between PSCo and the City. Capitalized terms used herein and not otherwise defined shall have the meanings given in the Agreement. 2. PSCo's agreement to allow the use of its Poles for Ornamental Pole Attachments by the City pursuant to the Agreement, and to permit Contractor to access Poles for the Work is conditioned on Contractor providing this Contractor Agreement to PSCo. The Contractor acknowledges and agrees that it has a copy of the Agreement and has reviewed same. 3. As used herein "Claims" means: any and all loss, expense, damage, injury, liability or claims, whether in law or equity , of any person or entity, however caused, resulting or alleged to result, directly or indirectly from or out of the Work, Contractor's presence at or use of the Poles, and its activities related to the Poles or Ornamental Pole Attachments, including, without limitation, claims for injury or death to employees or subcontractors of Contractor or the City, claims arising from, alleged to arise from, or related to, any injury allegedly or actually occurring, relating to the effects of electromagnetic fields, stray current or induced current. Now therefore, in consideration of the agreements ofPSCo referenced herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Contractor hereby releases, waives and discharges PSCo, its affiliates, agents, contractors and employees, and successors and assigns under the Agreement, from any and all liability of any kind whatsoever for any and all Claims, and Contractor hereby agrees to defend, indemnify and save PSCo, its officers, agents and employees harmless from and against liability for any and all Claims, including without limitation, fines, penalties, costs, attorneys' fees, damages, actions, or responsibilities imposed upon or incurred by PSCo, along with attorneys' fees incurred by PSCo in connection with the enforcement of this Contractor's Agreement. Further, Contractor agrees to purchase and maintain general liability insurance covering its obligations under this Contractor Agreement, in accordance with the provisions of Exhibit D-1 of the Agreement, naming PSCo as an additional insured. Contractor: Signature: ________________________________ __ Name (printed or typed): __________ _ Title --------------------------------------- 11 EXHIBITD-1 INSURANCE REQUIREMENTS 1. City and its contractors, subcontractors and consultants (collectively "City") shall purchase and maintain the insurance coverage listed below and City shall provide evidence of all such insurance to Public Service Company of Colorado, a Colorado corporation ("PSCo") upon the execution of this Agreement , but in all events prior to any Ornamental Pole Attachment being attached to a Pole (the "Work"). Such insurance shall be as specified below and all insurance companies shall be rated A-7 or better by A.M. Best rating services , and for coverage not less than: a . Worker's Compensation at statutory limits for the state of hire or operations. b. Employer's Liability, including other state 's insurance and voluntary compensation, as follows: Bodily Injury Limits by Accident at one million dollars ($ 1 ,000 ,000) per accident ; Bodily Injury Limits by Disease at one million dollars ($ 1 ,000 ,000) policy limit and Bodily Injury by Disease at one million dollars ($ I ,000 ,000) per employee . c . Commercial General Liability, including Products and Completed Operations and Property Damage Liability on the CG 20 33 (10 01) and CG 20 37 (1 0 01) or equivalent on an occurrence form, with limits of not less than two million dollars ($2 ,000 ,000) per occurrence and ten million dollars ($10 ,000 ,000) in the aggregate, which can be achieved with a combination of General Liability and Umbrella Limits . Umbrella or Excess must name PSCo as an additional insured. d. Commercial Automobile Liability, with a combined single limit of not less than one million dollars ($1 ,000 ,000), including , but not limited to , coverage for : owned vehicles , non- owned vehicles, and hired vehicles . e . contractual liability to cover liability assumed under the foregoing agreement. 2. All dollar amounts of coverage set forth above shall be per occurrence . The policies described herein shall (i) be endorsed to show that the insurers waive subrogation against PSCo, its Affiliates , directors , officers and employees, (ii) written so that the insurance is primary and non- contributory (iii) contain Additional Insured Status on Commercial General Liability, and Commercial Automobile Liability. 3. Certificates of insurance acceptable to PSCo shall be filed with PSCo prior to commencement of the Work, and each renewal period for the Work. These certificates shall contain a provision that in the event coverage afforded under the policies are canceled or materially change/altered , the insurer will provide thirty (30) days written notice to PSCo. Notwithstanding the foregoing , City has a continuing obligation to provide the insurance coverage described herein and none of the insurance required herein shall be canceled , or allowed to lapse until the City's obligations under the Agreement have been completed. Notices shall be sent to PSCo at the following address: 4. Insurance specified herein shall be minimum requirements and City is responsible for providing any additional insurance deemed necessary to protect the interests of both City and PSCo from other hazards or claims in excess of the minimum coverage. The liability of City is not limited to available insurance coverage. 12 EXHIBITD-2 COVERAGE LIMITS 13 EXHIBIT E ASSUMPTION AGREEMENT This Assumption Agreement is executed as of , 20 __ by the undersigned ("Permittee") for the benefit of Public Service Company of Colorado, a Colorado corporation ("PSCo"). 1. Permittee has requested permission from the City of (the "City") to attach, maintain and remove an Ornamental Pole Attachment to a Pole as a Pennittee of City under that certain Joint Use Agreement Regarding Street Light Poles Owned By Public Service Company of Colorado (the "Agreement") entered into between PSCo and the City. Capitalized terms used herein and not otherwise defined shall have the meanings given in the Agreement. 2. PSCo's agreement to allow the use of its Poles for Ornamental Pole Attachments by the City pursuant to the Agreement , and PSCo's consent to Permittee's use of the Poles, is conditioned on Permittee executing and delivering this Assumption Agreement to PSCo prior to any use of the Poles by Permittee. 3 . As used herein "Claims" means: Any and all Joss, expense, damage, injury, liability or claims, whether in law or equity , of any person or entity , however caused, resulting or alleged to result, directly or indirectly from, out of, or related to the attachment, maintenance and/or removal of any Ornamental Pole Attachment by or on behalf of Permittee, including, without limitation, claims for injury or death to employees or subcontractors of Contractor or the City, claims arising from, alleged to arise from, or related to , any injury allegedly or actually occurring, relating to the effects of electromagnetic fields , stray current or induced current. Now therefore, in consideration of the agreements of PSCo referenced herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged , Permittee hereby: A. Acknowledges receipt of a true and complete copy of the Agreement; B. Assumes and agrees to be bound by each of the terms and conditions of the Agreement which are applicable to the City; C . Acknowledges that it has acquired no rights in the Poles or rights to enforce any provisions of the Agreement against PSCo; D . Releases , waives and discharges PSCo, its affiliates, agents , contractors and employees , and successors and assigns under the Agreement, from any and all liability of any kind whatsoever for any and all Claims , and Permittee hereby agrees to defend , indemnify and save PSCo , its officers, agents and employees harmless from and against liability for any and all Claims, including without limitation, fmes, penalties, costs, attorneys' fees, damages, actions , or responsibilities imposed upon or incurred by PSCo, along with attorneys' fees incurred by PSCo in connection with the enforcement of this Assumption Agreement; and E. Agrees to purchase and maintain commercial general liability insurance covering its obligations under this Assumption Agreement in accordance with the terms of the Exhibit D- ~ of the Agreement, naming PSCo as an additional insured . Permittee: Signature:------------------ Name (printed or typed):----------- Title -------------------------- 14 ~A~ ... ' ., City of .. ~WlieatRi_dge ~P U BLIC WORKS City of Wheat Ridge Municipal Building 7500 W . 29'b A ve . Wheat Ridge, CO 80033-8001 P : 303 .235 .2861 F: 303 .235.2857 December 5, 2012 Robert Osborn Xcel Energy 1800 Larimer Street, Suite 1400 Denver, CO. 80202 RE: City of Wheat Ridge street light pole utilization Dear Rob, As requested in your December I , 2012letter, I have attached the list of power and street light poles that have been used for seasonal banners and flags . Most of these poles are wood in composition. The City believes that the historic use of these poles for hanging banners and flags did not compromise the integrity of the poles and did not create safety concerns. Continued use of these poles is requested . In further response to Xcel 's change in its banner policy, and suggested among options that would be considered by Xcel , the City would consider acquiring a number of street light poles upon which it may desire to place banners. Toward that end, and consistent with the Xcel's representations in its notification to the City, please provide the City with the cost that the Xcel Energy Company would impose for the City to acquire the street lights as listed in the second attachment. In addition , because the City is considering both acquisitions of full ownership of these street lights as well as acquisition of a lesser interest, we would like to know the following : • What is the Book Value of the street lights in question? • What is the price of the pole only with no connecting wires or the luminaire? • What is the cost for the City to acquire an easement to utilize the poles for the placement of banners, flags , flower pots, and similar items? The City would like to obtain this information no later than December 31 , 2012 and appreciates Xcel Energy Company's prompt response to this request. s~ J~:-- Timothy Paranto, P .E Director of Public Works cc: Patrick Goff, City Manager Preston Gibson www.cl.whea tridge.co.u s Street Light Banner Attachment Request-Version 1 City Name: Wheat Ridge-Historic poles used Rank Pole Grid Street Light Location Street Light Description (Manufacturer, style, part # Number (street name & 2 cross-streets) #) (if available) (if known) 6650 44th Ave 12651 38'" Ave 10041 26'h Ave 6815 44'" Ave 9707 44'" Ave 5135 Ward Road 3130 Y oungfield St 4895 Ward Road 12295 3200 Ave 10320 44'" Ave 8751 44'" Ave 7420 20'" Ave 4966 Ward Road 9475 44'" Ave 5040 Ward Road 6600 441h Ave 5301 38'" Ave 11498 38'" Ave 6700 38th Ave 7455 3200 Ave 1 0204 38'" Ave 10150 441h Ave 12405 38'" Ave Street Light Banner Attachment Request-Version 1 City Name: Wheat Ridge-Historic poles used 9950 38m Ave 9345 44tn Ave 4100 Y oungfield St 7618 44tn Ave 11600 32"0 Ave ' 4036 Y oungfield St ! 4746 Harlan St 9702 44m Ave 10111 26m Ave 12552 38tn Ave 44m Ave & Y oungfield St 8455 32 110 Ave 7645 38m Ave 699038m Ave 7400 29m Ave 11680 44tn Ave 6365 44m Ave 11940 38m Ave 11300 38th Ave 4501 Harlan 860144'" Ave 11930 44tn Ave 7043 38 10 Ave 6470 44th Ave 9455 32 110 Ave Street Light Banner Attachment Request-Version 1 City Name: Wheat Ridge-Historic poles used 8410 44th Ave 9950 38th Ave 3500 Youngfield St 6206 38th Ave 10097 38th Ave 10201 26th Ave 7300 381h Ave 10500 44tn Ave 7890 38th Ave 6600 38th Ave 3210 Youngfield St 4460 Harlan St 7010 44 10 Ave 12607 32 00 Ave 4631 Harlan St 7105 44 1h Ave 4803 Ward Road 8550 38 1 h Ave I 4651 Harlan St J --------- H•rtan Street -44th Avenue to Jnterstllte 70 Kipling Street ·44th Avenue to lnsterstate 70 927.776 3559 KIPLING ST 931 · 515 3621 KIPLING ST 930 .241 3697 KIPLING ST 918 .992 3745 KIPLING ST W1dsworth Boulev1rd -26th Avenue to 48th Avenue 38th Avenue • Lutheran Parkway West to Sheridan Boulevard Patrick Goff From: Sent: To: Cc: Subject: Attachments: Tim , Osborn, Robert J <Robert .J.Osborn@xcelenergy.com > Wednesday, December 12, 2012 2:11 PM Tim Paranto Patrick Goff; Gibson, Preston E; St eve Nguyen; Greg Knudson RE : Street light pole use street light pole letter 12 -5-12 .pdf Thank you for your letter dated December 5 , 2012 . I have forwarded your request to our operations department and they will work with the pole manufacturers to verify attachment capacities and initiate facility inspections for the poles you have listed . In our meetings with the City Managers, we are working in a comprehensive process to allow attachments , subject to some potential conditions, and ver ificat ions with the manufacturers on pole capacities and through field integrity investigations . Our pos ition is that we need to confirm facility capacities in partnership with the customers and the manufacturers to devise the most responsible solution with the safety of the communities we serve in mind . With respect to your questions I offer the following . 'What is the book value of the streetlights in question?" We have been working with other cities on requests like this and ou r goal is to clearly understand your needs. In addition , the energy only rate case established the protocol for transferring or promoting new ownership of the streetlight system for our customers . In essence, the poles , conduit , conductor and other equipment make the system up . The book value is dependent on age and expanse of the streetlight circuits and poles that you are interested in owning . The asset values of the system include more than the poles . System separation is also required to provide customers with the streetlight assets . Separation design and construction may also need to be addressed in developing a va lue for the system . Theses issues were discussed in the energy only rate case . The energy only rate outlines that there will be points of system demarcation between our distribution system and a customer owned streetlight system . Currently the systems have some intermingling that was intended to reduce the original construction costs of these systems . The company did not design the systems independent of one another because we never anticipated having to sell parts of the system off. The systems need to be separated now to process a request to transfer ownership to a customer. Per the ruling in the energy only rate case , the PUC ordered the company to develop a case by case sale estimate wh ich they retained the right to review and approve. During the case, the company proposed a system average asset sales approach . This approach was rejected by the Local Government Interveners counsel. We are required to design an estimate using records from our corporate asset accounting, perform field verification of each part of the system , and include actual system separation design and construction . As you can see the issue gets pretty complicated based on the order we rece ived from the PUC on how to develop the transfer of these assets . 1 I am asking that we have a meeting with your team and our corporate leadership who manages the outdoor lighting throughout the eight states we serve to discuss the areas you have an interest in acquiring the streetlight system , and we can then take next steps in verifying the system values. Our meeting will help us determine the timeframe to provide you with an estimate . 'What is the price of the pole only with no connecting wires or luminaire ?" We do not have a pole by pole price for sale. As I outlined above we are required to sell the system . If you are interested in general pole costs in consideration of building your own separate lighting system , you may wish to consult with some pole manufacturers directly. We can provide you with an estimate to provide the connection of that system to our distribution system based on you needs . Perhaps you can clarify your interest? 'What is the cost for the City to acquire and easement to utilize the poles for the placement of banners, flags , flower pots, and similar items?" At this time , the company has not fully considered an easement as a solution to the safety concerns we have regarding the multitude of types and sizes of non police attachments that get placed across the state on our poles . This idea was mentioned briefly a few months ago as a possible option , but through conversations with our city managers focus group , complexities in sharing liabilities , and inability for all cities to provide a method for insuring both the company and cities , this idea fell out from the concepts we have focused on . I have asked CIRSA to assist in understanding shared liability, and I was informed recently that they will not work directly with the company because we are not a member of their cooperative, but are working with their Cities on the issues associated with ideas like this . I will bring this concept up again at the next city manager's meeting we are hosting and ask if the cities have advanced this, as the cities are the ones who need to verify the insurance coverage . I do not believe the company has an interest in proceeding down this path as it seems very complicated in comparison to the program we have been asked to develop through the city managers focus group as I outlined above . Please advise dates and times you are available in the next two weeks for us to establish a meeting . We greatly appreciate your help and look forward to working with you . I will keep you update on facility verifications and inspections as these progress. Rob Xcef Energy• Robert J. Osborn, Esq. Director, Community Relations 1800 Larimer Street, 14th Floor Denver, CO 80202 PH 0 N E : 303-294-2873 CELL: 303-437-0668 FAX: 303-294-2915 IU,OIIIIIU aY IATUI£• E-M A I L: robert .Losbom@xcelenerny .com WWW .XCELENERGY.COM Please consider the environment before printing this e-mail. 2 City of Northglenn Municipal Code Section 16-2-20. City's Use of Trenches. Bores and Other Facilities Located in the Right-of-Way. (a) (b) (c) Should the City desire to place its own facilities in trenches or bores opened by a permittee, the permittee shall cooperate with the City in any construction by the permittee that involves trenching or boring provided that the City has first notified the permittee in writing that it is interested in sharing the trenches or bores in the area where the permittee's construction is occurring. The permittee shall allow the City to place its facilities in the permittee's trenches and bores, provided that: the City incurs any incremental increase in cost of the trenching and boring; the City's installation does not unreasonably delay the permittee's work; and the City's facilities are used solely for noncommercial, City purposes. The City shall be responsible for maintaining its respective facilities buried in the permittee's trenches and bores. If requested by the permittee, the City shall have separate access structures, and shall not use the permittee's access structures. Every utility and every provider of similar service within the City, regardless of whether it holds a franchise from the City, may be required by the City to permit joint use of its facilities located in the streets, alleys, or other public places in the City, as such may be reasonably practicable. Examples of such joint use may include, but are not limited to, attachment of flags, banners, or similar signs announcing public events, holiday lights and other decorative attachments, pedestrian or other traffic related safety signs, flashing crosswalk lights, flower pots and baskets, and other similar attachments. Such use of said facilities by the City shall not create a material negative impact on a private entity's facilities or operations, and such use may only be considered when it can be accomplished, at the City's discretion, in a manner that is protective of public health and safety. Nothing contained herein shall limit the City's ability to enter into any other type of joint use agreement with utility and other service providers owning facilities located in City streets, alleys, or other public places. The City may adopt standards for use by the City of a private entity's facilities in City streets, alleys and other public places and shall apply such standards to all similarly situated facilities; provided, however, that such standards may be modified where unusual conditions indicate such a modification will allow for an adequate and safe utilization of such facilities. (d) (e) (f) f the utility or other service provider that is the owner of the facilities in the streets, alleys or other public places objects to any proposed City use of such facilities, the City shall be permitted to undertake a study to address the concerns raised by the facilities' owner. ( 1) (2) The owner of the facilities shall cooperate in providing the City any information reasonably needed to study and respond to the facilities' owner's objections. For purposes of this Section 16-2-20, an owner shall be deemed to have failed to cooperate if it does not provide the City with any information reasonably requested within seven (7) calendar days of a written request. If the City provides information to the utility or other service provider which reasonably demonstrates that its proposed use of the facility will not cause a material negative impact on the utility or other service provider's facilities or operations and will not negatively impact public health and safety, the facility owner shall allow the City's proposed use, subject to any conditions reasonably necessary to insure that the use will not cause the negative impacts described herein. Failure to make such facilities available for City use as provided herein shall be a violation of this Chapter and subject to the penalties set forth in Section 16-2-29 of this Chapter. It shall be unlawful for any person, including any representative or contractor of a utility or other service provider, to remove flags, banners, or similar signs announcing public events, holiday lights and other decorative attachments, pedestrian or other traffic related safety signs , flashing crosswalk lights , flower pots and baskets, and other similar attachments from facilities located in the streets , alleys, or other public places in the City without receiving advance written permission from the City Manager or the City Manager's designee. In addition to addressing violations of this Section under Section 16-2-29 of the Northglenn Municipal Code , if a facility owner fails to make its facilities available after the City has provided the information described in this Section 16-2-20, the City Manager or the City Manager's designee is authorized to withhold issuance of a building permit or any other required permit sought by the facility's owner until arrangements have been made to the City's satisfaction that the requested City use of the facilities in the streets, alleys, or other public places is being provided. [Source: Ord. 1381, 2004; 1635, 2012] .... ~~~ .. r City of --~WheatB4_dge ~OFACE OF THE CITY MANAGER Memorandum TO: Mayor and City Council Patrick Goff, City Manager ~ FROM: DATE: April 28 , 2014 (for study session ofMay 5) SUBJECT: Height and Density Charter Restrictions On November 3 , 2009 , Wheat Ridge voters approved two ballot questions amending the Wheat Ridge Home Rule Charter to exempt certain areas ofthe City from the height and residential density limitations of Charter Section 5.1 0.1 (Attachment I). Both measures passed with approximately 53% of the vote . The areas exempted from the Charter restrictions are defined by the boundaries of the following Wheat Ridge Urban Renewal Plans with certain exclusions (Attachment 2). I . Wheat Ridge Town Center Project Urban Renewal Plan 2. Wadsworth Boulevard Corridor Redevelopment Plan 3. West 441h Avenue/Ward Road Redevelopment Plan 4. 1-70/K.ipling Corridors Urban Renewal Plan a. Excluding the Appleridge Village Shopping Center and Kipling Street south of 441h A venue Those properties included in the 38 1h A venue Corridor Redevelopment Plan from Wadsworth Boulev ard to Sheridan Boulevard and all other areas of the City were excluded from the amendment to the Charter. As we prepare to conduct a citywide poll of Wheat Ridge citizens to measure their level of support for potential ballot questions this fall , staff would like further direction from Council if the height and density charter restriction issue should be considered for the November ballot. ATTACHMENTS: 1. Ordinance No. 1452-2009 2. Map of Exempted Properties from the Charter Height and Density Restrictions CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER GOKEY Council Bill No. 24 Ordinance No. --l.A.S.2 Series of 2009 TITLE: AN ORDINANCE SUBMITTING TWO BALLOT QUESTIONS TO THE VOTERS OF THE CITY AT THE NOVEMBER 3, 2009 REGULAR MUNICIPAL ELECTION, TO AMEND THE WHEAT RIDGE HOME RULE CHARTER TO EXEMPT CERTAIN _AREAS OF THE CITY FROM THE HEIGHT AND RESIDENTIAL DENSITY LIMITATIONS OF CHARTER SECTION 5.10.1 WHEREAS, pursuant to Charter Section 16.8 and C.R.S. 31-2-210, the City Council of the City of Wheat Ridge, Colorado has the authority to refer ballot questions amending the City's Home Rule Charter to the electorate; and WHEREAS, the Council wishes to refer two (2) ballot questions amending the Charter to exempt two (2) areas of the City from the Charter limitations upon building height and residential density; and WHEREAS, the Council wishes to set ballot titles for the same. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Ballot question referred and ballot title set. The following ballot question is hereby referred -to the electorate of the City at the November 3, 2009 regular municipal election: SHALL SECTION 5.1 0.1 OF THE HOME RULE CHARTER OF THE CITY OF WHEAT RIDGE, COLORADO, BE AMENDED BY THE ADDITION OF A NEW SUBSECTION G, EXEMPTING THE FOLLOWING AREAS OF THE CITY FROM THE LIMITATIONS OF THAT SECTION UPON BUILDING HEIGHT AND RESIDENTIAL DENSIW: (1) THAT AREA DESCRIBED IN THE WEST 44TH AVENUE/WARD ROAD REDEVELOPMENT PLAN, ADOPTED OCTOBER 22, 2001, AND (2) THAT AREA DESCRIBED IN THE 1-70/KIPLING CORRIDORS URBAN RENEWAL PLAN, ADOPTED AUGUST 10, 2009, EXCLUDING THEREFROM ALL PROPERTIES IN THE PLAN AREA ALONG THE KIPLING STREET CORRIDOR SOUTH OF 44TH AVENUE AND ALL PROPERTIES IN THE PLAN AREA EAST OF INTERSTATE 70, NORTH OF 32NO AVENUE, WEST OF WARD ROAD AND SOUTH OF THE WEST 44TH AVENUE/WARD ROAD REDEVELOPMENT PLAN AREA, WITHOUT MODIFYING ANY CURRENT ZONING ON ANY PROPERTY AND PRESERVING EXISTING HEIGHT AND DENSITY LIMITATIONS IN THE WHEAT RIDGE CODE OF LAWS UNLESS AND UNTIL MODIFIED THROUGH FUTURE ORDINANCES APPROVED BY CITY COUNCIL AFTER PUBLIC HEARINGS? Yes: No: -------- Full Text of Amendment: Amend Section 5.10.1 of the Charter to add a new subsection f to read as follows: Sec. 5.1 0.1 Building height and density limitations. g. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION 5.10.1, THE LIMITATIONS UPON BUILDING HEIGHT AND RESIDENTIAL DENSITY CONTAINED HEREIN SHALL NOT APPLY WITHIN THE FOLLOWING AREAS OF THE CITY: (1) THAT AREA DESCRIBED IN THE WEST 44TH AVENUE/WARD ROAD REDEVELOPMENT PLAN, ADOPTED OCTOBER 22, 2001, AND (2) THAT AREA DESCRIBED IN THE 1-70/KIPLING CORRIDORS URBAN RENEWAL PLAN, ADOPTED AUGUST 10, 2009, EXCLUDING THEREFROM ALL PROPERTIES IN THE PLAN AREA ALONG THE KIPLING STREET CORRIDOR SOUTH OF 44TH AVENUE AND ALL PROPERTIES IN THE PLAN AREA EAST OF INTERSTATE 70, NORTH OF 32N° AVENUE, WEST OF WARD ROAD AND SOUTH OF THE WEST 44TH AVENUE/WARD ROAD REDEVELOPMENT PLAN AREA, WITHOUT MODIFYING ANY CURRENT ZONING ON ANY PROPERTY AND PRESERVING EXISTING HEIGHT AND DENSITY LIMITATIONS IN THE WHEAT RIDGE CODE OF LAWS UNLESS AND UNTIL MODIFIED THROUGH FUTURE ORDINANCES APPROVED BY CITY COUNCIL AFTER PUBLIC HEARINGS . Ballot Title: AMEND SECTION 5.10.1 OF THE WHEAT RIDGE HOME RULE CHARTER TO EXEMPT CERTAIN AREAS OF THE CITY FROM THE LIMITATIONS UPON BUILDING HEIGHT AND RESIDENTIAL DENSITY CONTAINED IN CHARTER SECTION 5.10 .1, WITHOUT MODIFYING ANY CURRENT ZONING ON ANY PROPERTY AND PRESERVING EXISTING HEIGHT AND DENSITY LIMITATIONS IN THE WHEAT RIDGE CODE OF LAWS UNLESS AND UNTIL MODIFIED THROUGH FUTURE ORDINANCES APPROVED BY CITY COUNCIL AFTER PUBLIC HEARINGS. Section 2. Ballot question referred and ballot title set The following ballot question is hereby referred to the electorate of the City at the November 3, 2009 regular municipal election: SHALL SECTION 5.10.1 OF THE HOME RULE CHARTER OF THE CITY OF WHEAT RIDGE, COLORADO, BE AMENDED BY THE ADDITION OF A NEW SUBSECTION F, EXEMPTING THE FOLLOWING AREAS OF THE CITY FROM THE LIMITATIONS OF THAT SECTION UPON BUILDING HEIGHT AND RESIDENTIAL DENSITY: (1) THAT AREA DESCRIBED IN THE WHEAT RIDGE TOWN CENTER PROJECT URBAN RENEWAL PLAN, ADOPTED DECEMBER 14, · 1981 AND AMENDED BY RESOLUTION 13-2001 ON APRIL 23, 2001, 2 SPECIFICALLY AS DIAGRAMED IN EXHIBITS 1 AND 2 AND DESCRIBED IN EXHIBIT 3 OF SAID RESOLUTION, AND (2) THAT AREA DESCRIBED IN THE WADSWORTH BOULEVARD CORRIDOR REDEVELOPMENT PLAN, ADOPTED OCTOBER 22, 2001, WITHOUT MODIFYING ANY CURRENT ZONING ON ANY PROPERTY AND PRESERVING EXISTING HEIGHT AND DENSITY LIMITATIONS IN THE ·WHEAT RIDGE CODE OF lAWS UNLESS AND UNTIL MODIFIED THROUGH FUTURE ORDINANCES APPROVED BY CITY COUNCIL AFTER PUBLIC HEARINGS? Yes: No: -------- Full Text of Amendment: Amend Section 5.1 0.1 of the Charter to add a new subsection f to read as follows: Sec. 5.10.1 Building height and density limitations. f. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION 5.10.1, THE LIMITATIONS UPON BUILDING HEIGHT AND RESIDENTIAL DENSITY CONTAINED HEREIN SHALL NOT APPLY WITHIN THE FOLLOWING AREAS OF THE CITY: (1) THAT AREA DESCRIBED IN THE WHEAT RIDGE TOWN CENTER PROJECT URBAN RENEWAL PLAN, ADOPTED DECEMBER 14, 1981 AND AMENDED BY RESOLUTION 13-2001 ON APRIL 23, 2001, SPECIFICALLY AS DIAGRAMED IN EXHIBITS 1 AND 2 AND DESCRIBED IN EXHIBIT 3 OF SAID RESOLUTION, AND (2) THAT AREA DESCRIBED IN THE WADSWORTH BOULEVARD CORRIDOR REDEVELOPMENT PLAN, ADOPTED OCTOBER 22, 2001, WITHOUT MODIFYING ANY CURRENT ZONING ON ANY PROPERTY AND PRESERVING EXISTING HEIGHT AND DENSITY LIMITATIONS IN THE WHEAT RIDGE CODE OF LAWS UNLESS AND UNTIL MODIFIED THROUGH FUTURE ORDINANCES APPROVED BY CITY COUNCIL AFTER PUBLIC HEARINGS. Ballot Title: AMEND SECTION 5.10.1 OF THE WHEAT RIDGE HOME RULE CHARTER TO EXEMPT CERTAIN AREAS OF THE CITY FROM THE LIMITATIONS UPON BUILDING HEIGHT AND RESIDENTIAL DENSITY CONTAINED IN CHARTER SECTION 5.10.1, WITHOUT MODIFYING ANY CURRENT ZONING ON ANY PROPERTY AND PRESERVING EXISTING HEIGHT AND DENSITY LIMITATIONS IN THE WHEAT RIDGE CODE OF LAWS UNLESS AND UNTIL MODIFIED THROUGH FUTURE ORDINANCES APPROVED BY CITY COUNCIL AFTER PUBLIC HEARINGS. Section 3.Challenges to ballot titles and content. For purposes of C.R.S. § 1- 11-203.5 and § 31-1 0-1308(2), this Ordinance shall serve to set the titles and content of the ballot issues set forth herein. Any petition to contest the form or content of the ballot titles must be filed with the Jefferson County District Court and a copy served on the 3 l j · I I I I . City Clerk within five days after the titles of the ballot issue are set by the City Council upon final adoption of this Ordinance on second reading. Section 4. Safety Clause. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Wheat Ridge, that it is promulgated for the health, safety, and welfare of the public and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be attained. Section 5. Effective Date. This Ordinance shall take effect immediately upon adoption at second reading, as permitted by the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of 8 to 0 on this 1Oth day of August, 2009, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge and Public Hearing and consideration on final passage set for August 24, 2009, at 7:00 o'clock p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of 8 to o , this 24th day of August, 2009. SIGNED by the Mayor on this 25th ATIEST: ~ Michael Snow, City Clerk First Publication: August 13, 2009 Second Publication: August 27, 2009 Wheat Ridge Transcript Effective Date: August 24, 2009 4 Gerald E. Dahl, City Attorney · I I. I I I I I. I ! i·· I I I I· ~i 0 § 0 ..... 0 8 8 ..... ~ 3095000 I I I I 0 City Bo undary I Ballot Question D • ~ '~ ~ ., One Two N A NOT TO~ 48TH AVE- 3100000 I I I I I I I I I L52NDAVE Q a: Q a: ~ 3100000 3105000 3110 00 0 3115000 31 I I ffi___,--57TH AVE-------1 Q ffi-GRANDVIEW AVE 1 !n fu I ~ Q ..... t-< z (/) (/) (/) --z r a: ;#. 0 a: Ill (/) c( 0: (.) a: I I c( 52 NO AVE I I I I " I ----------44TH AV E I I I I - ..... (/) (!) z ::; 0.. i: ~--------38THAVE----t-------------~------------~ < In ~ c( J: 0.. :::::1 0 0 0 "' ;:: 0 8 0 ;:: 0 0 g 0 ..... ~ 0 ~ ~6TH AVE ~ I ~ 8 0 ..... 3105000 3110000 3115000 3120000 ~of D>rl~e Wheat~~~ Proposed Exclusions from Charter Height & Density Restrictions